You Textin' to Me? Robert De Niro Loses a Work Product Claim

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Actor Robert De Niro's feud with a former production company manager has generated several opinions by Southern District of New York Magistrate Judge Katharine Parker.

In Robinson v. De Niro, No. 19-CV-9156 (LJL) (KHP), 2022 U.S. Dist. LEXIS 42101 (S.D.N.Y. Mar. 9, 2022), the court analyzed several issues. Among other things, the court held that: (1) draft state court proceedings deserved work product or privilege protection; (2) "a cover note sharing a draft complaint without any commentary and that is a mere transmittal is not protected"; and (3) plaintiff's resignation letter sent to De Niro did not deserve protection, but later email message traffic about it did deserve such protection. Somewhat surprisingly, the court held that a text message that "merely identifies information (specifically, a website link) on Plaintiff" did not deserve work product protection – because it "neither conveys nor seeks legal advice and does not reflect any attorney mental impressions." Id. at *21-23, *26-27. Although transmittal communications generally deserve no protection, many courts would protect as fact (probably not opinion) work product a litigation-motivated text message pointing to some source of information about an adversary.

Proskauer alum Judge Katharine Parker seems to have become the go-to privilege/work product expert on the S.D.N.Y. – after Judge James Francis's 32-year tenure playing that role. So lawyers should pay special attention to her analyses.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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