THIEL v. RIDDELL, INC. et al.

Filing 185

OPINION. Signed by Magistrate Judge Joel Schneider on 12/5/2016. (dmr)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

In re RIDDELL CONCUSSION
Civil No. 13-7585 (JBS/JS)
REDUCTION LITIGATION

OPINION
This Opinion decides plaintiffs’ challenge to 272 documents
on defendants’ privilege log that were reviewed in camera. The
documents primarily concern communications between and amongst
Riddell’s
outside

employees,
counsel,

(“P.R.”),

marketing,

consultants. 1
address

and

two

In

including
Riddell’s
crisis

particular,

regularly

an

occasional
outside

management
the

occurring

public
and/or

Opinion
vexing

in-house

must

issues.

and

relations
“messaging”

of

necessity

One,

whether

emails exchanged amongst corporate employees are privileged even
though

they

are

not

sent

to

or

received

from

an

in-house

corporate attorney. Two, whether corporate emails copied to inhouse counsel touching on legal issues are privileged if they
also contain mixed discoverable business information. For the
1

The named defendants in the case are Riddell, Inc., Riddell
Sports Group, Easton-Bell Sports, Inc., Easton-Bell Sports, LLC,
EB Sports Corporation, RBG Holdings Corporation and All-American
Sports Corporation. These entities will be collectively referred
to as “Riddell” or “defendants”.
1

reasons to be discussed, plaintiffs’ challenges to defendants’
privilege designations are sustained in part and overruled in
part.
Background
This

is

a

proposed

nationwide

class

action

filed

by

purchasers of Riddell’s Revolution football helmets from 2007 to
present seeking the return of a “price premium” allegedly paid
for the helmets. The case focuses on the concussion reduction
capabilities

of

advertising

and

Riddell’s
marketing

helmets
of

and

the

defendants’

helmets.

pricing,

The

crux

of

plaintiffs’ case is the claim that Riddell’s Revolution helmets
offered

no

greater

protection

against

concussions

than

other

helmets and, therefore, the price premium they paid should be
reimbursed.

Plaintiffs

“concussion

reduction

claim

Riddell’s

technology”

or

use

“CRT”

of

the

was

terms

false

and

misleading. Riddell denies all liability allegations.
Riddell’s
described

as

representatives

alleged

communications
and

marketing,

crisis

Riddell’s

privilege

Declaration

of

privileged

its

between

outside

and

can

and/or

assertions

are

General

2

generally

amongst

consultants

management

current

documents

its

only

sales

regarding

“messaging”

Brian

P.R.,
issues.

supported

Counsel,

be

P.

by

the

Roche,

Esquire. 2

Roche

generally

states

that

Riddell’s

“sales

representatives receive legal guidance, input and approval from
counsel” (& 11), its sales representatives are “integral to the
provision of legal advice by counsel for Riddell” (& 12), and it
is “frequently necessary for Riddell’s sales representatives to
solicit,

receive,

performance

of

and

their

disseminate
duties[.]”(&

advice
13).

from

In

counsel

addition,

in

Roche

explains that in connection with its business Riddell has relied
on outside marketing, P.R. and crisis management consultants to
implement

business

strategies

(&

15).

Roche

states

these

companies “acted as extensions of Riddell’s in-house personnel,
and as such, regularly sought and received legal advice from
Riddell’s in-house and outside counsel[.]” (& 15). One company
Riddell relied upon was MSL which performed its functions in
connection with a Congressional inquiry and FTC investigation of
different sporting goods companies (& 17). In addition to MSL,
Riddell worked

with

Cohn

&

Wolfe,

Empire

Green

Creative

and

Headrush Creative who served the equivalent role as an in-house
marketing department (& 20).
Roche

also

explains

that

in

connection

with

the

FTC’s

investigation of sporting goods companies from 2009 to 2013, the
Sports and Fitness Industry Association (“SFIA”), formerly the
Sporting
2

Goods

Manufacturers

Association,

represented

the

See attachment to Riddell’s July 15, 2016 Letter Brief (“RLB”).
3

interests
Roche,

of

its

Riddell

member

was

companies

asked

“for

(&&

legal

21-22).
advice

According
and

input

to
in

connection with representing the member companies’ shared legal
interests.” (& 22). One

additional

company

mentioned

in

Riddell’s documents is Simbex Product Development. Riddell hired
Simbex to assist in the development of certain technologies or
devices (& 23). 3
As to all of the referenced companies Roche states there
was an expectation of privacy and confidentiality over Riddell’s
communications.

Nevertheless,

Roche

did

not

address

any

particular documents and merely discussed plaintiffs’ objections
in generalities. 4

3

The Court is not able to identify the designated number of the
Simbex document at issue and makes no determination whether it
is privileged. Riddell should promptly forward a copy of the
document to the Court for an in camera review.
4 It is not insignificant that Roche did not specifically address
any challenged document. Instead, Roche speaks in broad general
terms that courts repeatedly hold is insufficient to satisfy the
burden to establish a privilege. Younes v. 7-Eleven, Inc., C.A.
Nos. 13-3500, 13-3715, 13-4578, 2014 WL 1959246, at *3 (D.N.J.
May 15, 2014)(“Broad boilerplate assertions are insufficient to
establish that a privilege exists.”). For example, in deciding
whether a particular document is privileged it is not helpful to
merely assert that generally sales representatives “receive
legal guidance, input and approval from counsel” and they are
“integral to the provision of legal advice.” Nor is it helpful
to the privilege analysis to know that Riddell’s agents
“regularly sought and received legal advice from Riddell’s …
counsel[.]”
This
information
is
silent
about
whether
a
particular document is privileged. While the Court is not averse
to representative sampling, Roche did not even address any
specific categories of documents. In fact, Roche’s Declaration
did not mention any document. U.S. v. Rockwell Intern., 897 F.2d
4

Not

knowing

the

substance

of

Riddell’s

documents,

plaintiffs could only surmise as to their content. Plaintiffs’
general argument is that Riddell’s documents are not privileged
because

they

merely

involve

routine

business

correspondence

between sales employees and third-parties. July 25, 2016 Letter
Brief (“PLB”) at 5-7. Plaintiffs point out they are challenging
210 documents where Riddell’s employees communicated with thirdparties

in

the

absence

of

an

attorney.

Rather

than

being

privileged, plaintiffs argue the communications were exchanged
in the “everyday course of business.” Id. at 5. Plaintiffs also
challenge

62

documents

sent

to

or

by

Riddell’s

sales

representatives. Although counsel is sometimes copied on email
chains,

plaintiffs

believe

these

documents

involve

“routine

[business] communications.” Id. at 7.
Riddell argues its communications with third parties such
as MSL are privileged because these entities performed the same
role as employees and acted as the “functional equivalent” of an
employee. RLB at 9. As to the communications by and between its
sales agents, Riddell argues these entities were involved with
1255, 1265 (3d Cir. 1990)(blanket assertions do not support a
privilege claim). In addition to relying upon its Declarant’s
general statements to support its privilege assertions, Riddell
also relies upon the conclusions in its letter brief. This is
inadequate to support a privilege claim. Id. While Riddell
offers to provide more specific information if requested by the
Court, the Court is adverse to a “do over” of this dispute.
Riddell already had a sufficient opportunity to submit whatever
information it wanted in support of its privilege claim.
5

counsel

regarding

“legal

strategies,

responses

to

sensitive

media inquiries, draft congressional testimony, mitigating the
risk

of

investigation

or

litigation,

and

legal

advice

on

Riddell’s public facing marketing (including press releases and
advertising copy).” Id. at 8.
Discussion 5
The Court’s discussion will be divided into two parts. The
Court will first discuss the general legal principles it will
apply. The Court will then apply the principles to Riddell’s
documents to decide if they are privileged.
1.

General Privilege Principles
a.

Attorney-Client Privilege

The Court sits in diversity and, therefore, will apply New
Jersey law to decide attorney-client privilege issues. Fed. R.
Evid. 501; In re Human Tissue Products Liab. Litig., 255 F.R.D.
151,

156

(D.N.J.

establishing

that

2008)(citation
a

document

is

omitted).
privileged

The
is

on

burden
the

of

party

asserting the privilege. Torres v. Kuzniasz, 936 F. Supp. 1201,
5

Much of Riddell’s submission is spent arguing that plaintiffs
waived their right to assert the present objections. The Court
discounts the argument and will address the merits of the
present dispute. The Court granted plaintiffs leave to challenge
Riddell’s privilege assertions at the June 27, 2016 conference.
It is true that at that time plaintiffs indicated they were only
raising 30-50 objections. Nevertheless, the Court would have
granted plaintiffs the same leave even if plaintiffs raised
objections to 272 documents. The Court rejects any notion that
plaintiffs made deliberate misrepresentations to the Court or
acted other than in good faith.
6

1208

(D.N.J.

1996).

The

attorney-client

privilege

protects

communications when: (1) the asserted holder of the privilege is
or

sought

to

become

a

client,

(2)

the

person

to

whom

the

communication was made (a) is a member of the bar of a court, or
his subordinate and (b) in connection with the communication is
acting as a lawyer, (3) the communication relates to a fact of
which the attorney was informed (a) by his client (b) without
the

presence

of

strangers

(c)

for

the

purpose

of

securing

primarily either (i) an opinion on law or (ii) legal services or
(iii) assistance in some legal proceeding, and (d) not for the
purpose of committing a crime or tort, and (4) the privilege has
been (a) claimed and (b) not waived by the client. Rhone-Poulenc
Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 862 (3d Cir. 1994).
Importantly, the attorney-client privilege does not apply
just because a statement was made by or to an attorney. Thus,
the mere fact that Riddell’s counsel is copied on emails does
not

prove

a

document

is

privileged.

Spiniello

Companies

v.

Hartford Fire Insurance Company, C.A. No. 07-cv-2689 (DMC), 2008
WL

2775643,

at

*2

(D.N.J.

July

14,

2008)(simply

copying

or

“cc’ing” an attorney on an email is not enough to establish a
privilege); Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174
F.R.D.

609,

routine,

633

(M.D.

non-privileged

Pa.

1997)(“[W]hat
communications

would

otherwise

between

be

corporate

officers or employees transacting the general business of the
7

company do not attain privileged status solely because in-house
or

outside

counsel

is

‘copied

in’

on

correspondence

or

memoranda”). This makes perfect sense because otherwise parties
could

facilely

copying

an

avoid

attorney

producing
on

every

relevant

email.

discovery

See

Orion

by

simply

Corp.

v.

Sun

Pharmaceutical Industries, Ltd., C.A. Nos. 07-5436 (MLC), 085545

(MLC),

2010

WL

686545,

at

*8

(D.N.J.

Feb.

22,

2010)(“Because the privilege may be employed to obstruct the
search for truth, the privilege is not absolute and care must be
taken to insure the privilege is not abused”).
Further,

the

attorney-client

privilege

applies

to

communications and not facts. Rhone-Poulenc Rorer, Inc., 32 F.
3d at 862 (“The client … may not refuse to disclose any relevant
fact

within

statement

his

of

knowledge

such

fact

merely
into

because
his

he

incorporated

communication

to

a

his

attorney.”)(citation and quotation omitted); see also Louisiana
Mun. Police Employees Retirement System v. Sealed AirCorp, 253
F.R.D.

300,

underlying

305
any

(D.N.J.
given

2008)(“In

all

communication

instances,
remain

the

facts

discoverable”).

Instead, “[t]he [attorney-client] privilege protects only those
disclosures - necessary to obtain informed legal advice – which
might not have been made absent the privilege.” Westinghouse
Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414, 142324 (3d Cir. 1991) (citation, quotation and emphasis omitted).
8

An

attorney

who

is

not

performing

legal

services

or

relaying legal advice and who performs non-legal duties does not
qualify

for

the

privilege.

Payton

v.

New

Jersey

Turnpike

Authority, 148 N.J. 524, 550-51 (1997); Fredericks v. Atlantic
City Bd. of Educ., C.A. No. 08-3082 (RBK/JS) 2010 WL 3429605 at
*5

n.6

(D.N.J.

Aug.

26,

2010)(not

infrequently

lawyers

are

engaged to perform non-legal services); see also Ellerstein v.
Herman Body Co., 23 N.J. 348, 352 (1957), adopting the lower
Court’s ruling that if an attorney “is engaged for the rendition
of work which inherently is not the practices of law and his
knowledge

of

law

engagement

is

litigation

may

may

for

along

the

non-legal

arise

from

line

work.”
the

come

This

into

is

subject

of

play,

true
the

even

the
if

attorney’s

activities. Payton, 148 N.J. at 551.
b.

Corporate Counsel and Mixed Communications

In the present case a number of contested documents were
sent to or from Riddell’s in-house corporate counsel. It is of
course true that the attorney-client privilege applies to inhouse counsel.

Rowe v. E.I. Dupont, C.A. Nos. 06-1810 (RMB/AMD)

and 06-3080 (RMB/AMD), 2008 WL 4514092, at *7-8 (D.N.J. Sept.
30,

2008).

context

that

privilege
renders

However,
it

because

decisions

is

it

is

well-recognized

difficult

in-house
about

in

the

corporate

to

apply

the

counsel

often

participates

business
9

issues.

Id.

attorney-client

at

8.

in

and

Business

advice is not protected by the attorney-client privilege. Id. at
*7.

However,

if

a

communication

is

designed

to

meet

predominately legal problems the attorney-client privilege may
apply. Id. at *8. Only if an attorney is acting as a lawyer and
giving advice with respect to the legal implications of an issue
may

the

privilege

be

properly

invoked.

Id.

at

8

(citation

omitted). As explained in Payton, 148 N.J. at 550, “a fine line
exists between an attorney who provides legal services or advice
to an organization and one who performs essentially nonlegal
duties.”

Thus,

Riddell’s

the

Court

attorneys

must

played

determine
with

the

regard

exact

to

role

each

that

claimed

privileged document. Id. The general rule is that “while legal
advice given to a client by an attorney is protected by the
privilege, business advice generally is not.”

Louisiana Mun.

Police, 253 F.R.D. at 305; see also Rowe, 2008 WL 4514092, at
*8, noting that modern corporate counsel become involved in all
aspects of the company they work for and that “in-house counsel
participates in and renders decisions about business, technical,
scientific, public relations, and advertising issues, as well as
purely legal issues”).
Even if some portion of an attorney’s role is to give legal
advice this does not end the privilege inquiry. Often times an
attorney’s role is mixed. In instances of mixed communications
the

Court

must

determine

“whether
10

the

primary

purpose

and

content of the [communication] is predominantly legal.” Rowe, at
*11 (overruling privilege objection to a document because it did
not reflect the exercise of a predominantly legal function as
opposed to business advice). As noted in Rowe, “[o]nly if [an]
attorney is acting as a lawyer giving advice with respect to the
legal

implications

privilege

be

of

properly

a

proposed

invoked[.]”

course
On

the

of

conduct

other

may

hand,

the

“if

a

communication is made primarily for the purpose of soliciting
legal advice, an incidental request for business advice does not
vitiate

the

attorney-client

privilege.”

Id.

(citation

and

quotation omitted). As further noted in a recent well-reasoned
decision:
There is broad consensus in other jurisdictions that,
if the non-legal aspects of the consultation are
integral to the legal assistance given and the legal
assistance is the primary purpose of the consultation,
both the client’s communications and the lawyer’s
advice and assistance that reveals the substance of
those communications will be afforded the protection
of the privilege.
Harrington v. Freedom of Information Commission, 323 Conn. 1,
144

A.3d

405,

416

(Conn.

2016)(citation

and

quotation

omitted)(emphasis in original). 6

6

Rather than using a “primary purpose” test for mixed
communications, some courts use a “but for” test. Graco, Inc. v.
PMC Global, Inc., C.A. No. 08-1304 (FLW), 2011 WL 666048, at *16
(D.N.J. Feb. 14, 2011)(“[T]he party claiming privilege should
demonstrate that the communication would not have been made but
for the client’s need for legal advice or services”)(citation
and quotation omitted).
11

The

test

privilege
mixture

for

to
of

the

application

communications
services

of

with

legal

sought

are

is

the

attorney-client

counsel

in

whether

which

counsel

a
was

participating in the communications primarily for the purpose of
rendering legal advice or assistance. Therefore, merely because
a

legal

issue

can

communications

does

be

identified

not

justify

that

relates

shielding

the

to

on-going

communications

from discovery. The lawyer’s role as a lawyer must be primary to
her participation. In re Vioxx Products Liability Litigation,
501 F. Supp. 2d 789, 798 (E.D. La. Sept. 4, 2007).
Some
primary

relevant

purpose

factors

of

a

courts

mixed

consider

communication

to

determine

include:

(1)

the
the

context of the communication and the content of the document;
(2) whether the legal purpose permeates the document and can be
separated from the rest of the document; and (3) whether legal
advice is specifically requested and the extent of the recipient
list. Phillips v. C. R. Bard, Inc., 290 F.R.D. 615, 629 (D. Nev.
2013).

Judicial

scrutiny

should

focus

on

the

nature

of

the

relationship between in-house counsel and others and the type of
information

or

communication

involved.

United

Jersey

Bank

v.

Wolosoff, 196 N.J. Super. 553, 563 (App. Div. 1984).
c.
Many

of

Inter-Corporate Communications
the

challenged

documents

involve

communications

between and amongst Riddell’s employees that do not involve an
12

attorney.

The

Court

documents

amongst

agrees

with

corporate

Riddell

employees

that

does

simply
not

sharing

necessarily

vitiate a privilege. These communications remain privileged if
they assist the attorney to formulate and render legal advice.
Westinghouse Elec. Corp., 951 F.2d at 1424 (the client may allow
disclosure to an agent assisting the attorney in giving legal
advice); HPD Laboratories, Inc. v. Clorox Co., 202 F.R.D. 410,
414 (D.N.J. 2011). (“To qualify for protection, statements to
and

from

third

parties

must

be

made

in

confidence

for

the

purpose of obtaining legal advice from the lawyer”)(citation,
quotation and emphasis omitted). As noted in O’Boyle v. Borough
of Longport, 218 N.J. 168, 185 (2014), “[t]he privilege . . .
extends to consultations with third parties whose presence and
advice are necessary to the legal representation.” Disclosure of
attorney-client communications that are necessary to advance the
representation, do not waive the privilege. Id. However, the
privilege is waived if the document is shared beyond persons
with a “need to know.” TransWeb, LLC v. 3M Innovative Properties
Co., C.A. No. 10-4413 (FSH)(PS), 2012 WL 2878075, at *3 (D.N.J.
July 13, 2012). General group wide descriptions do not permit
the court to determine if the recipients require, or have the
capacity to act upon, the information distributed. Id.

13

d.

Riddell’s Third-Party Agents

The majority of challenged documents involve communications
between

and

amongst

Riddell’s

third-party

agents

which

were

mainly hired for P.R. and communications purposes. The Court
agrees with Riddell that the mere fact an attorney communicates
with

a

third-party

does

not

necessarily

waive

the

attorney-

client privilege. This is so because “[w]hen disclosure to a
third-party is necessary for the client to obtain informed legal
advice,

courts

have

recognized

exceptions

to

the

rule

that

disclosure waives the attorney-client privilege.” Westinghouse
Elec. Corp., 951 F.2d at 1424; O’Boyle, 218 N.J. at 309 (“If …
the third party is a person to whom disclosure of confidential
attorney-client

communications

is

necessary

to

advance

the

representation, disclosure will not waive the privilege”); In re
Grand

Jury,

705

F.3d

133,

160

(3rd

Cir.

2012)(“Privileged

persons include the client, the attorney(s), and any of their
agents
the

that

legal

help

facilitate

attorney-client

representation”)(citation

and

communications

quotation

or

omitted);

Tractenberg v. Township of West Orange, 416 N.J. Super. 354, 376
(App.

Div.

2010)(privilege

extends

to

“the

necessary

intermediaries and agents through whom the communications are
made”)(citation
Antitrust

and

quotation

Litigation,

200

omitted);
F.R.D.

In
213,

re

Copper
219

Market

(S.D.N.Y.

2001)(“[T]here is no reason to distinguish between a person on
14

the

corporation’s

payroll

and

a

consultant

hired

by

the

corporation if each acts for the corporation and possesses the
information needed by attorneys in rendering legal advice.”
Stated another way, the attorney-client privilege “protects
communications

made

to

an

attorney’s

agent

where

the

communication is necessary for the client to obtain informed
legal advice from the attorney.” E.I. Dupont deNemours & Co. v.
MacDermid, Inc., C.A. No. 06-3383 (MLC), 2009 WL 3048421, at *3
(D.N.J. Sept. 17, 2009). Thus, it is unquestionably the case
that communications between and amongst Riddell and MSL, et al.,
for the purpose of securing legal advice are privileged. It is
clear, however, that not all communications with an attorney’s
agent

are

protected.

To

be

protected

communications

with

a

third-party agent must be made in confidence for the purpose of
obtaining legal advice from the lawyer. Id. If the communication
would have been made in the normal course of business even if
the attorney did not need the information to give legal advice,
the communication is not privileged. ISS Marine Services, Inc.,
905

F.

Supp.

2d

at

128.

The

agent’s

involvement

must

be

necessary to the lawyer’s provision of legal advice. Id.; see
also Louisiana Mun. Police, 253 F.R.D. at 311 (privilege not
waived if the disclosure was made to an agent whose services are
necessary

for

effective

representation

of

the

client’s

interests). The party claiming the third-party as an agent, in
15

this

case

Riddell,

has

the

burden

to

show

that

a

privilege

exists and that the privilege has not been waived. Id.
e.

Work-Product Doctrine

To the extent Riddell relies on the work-product doctrine
to protect its documents (see RLB at 6), the argument is denied. 7
The burden of proving that a document is protected rests with
the party asserting the work-product doctrine. Torres, 936 F.
Supp. at 1208. The party claiming protection must demonstrate
the precise manner in which a document is protected. Id. Blanket
assertions do not suffice.

Caver v. City of Trenton, 192 F.R.D.

154, 159 (D.N.J. 2000).
In

order

for

documents

to

be

protected

from

discovery

pursuant to the work-product doctrine, “it must be reasonably
clear

based

on

the

surrounding

facts

and

the

nature

of

the

materials that they were in fact prepared or obtained because of
pending or anticipated litigation.”

Reich v. Hercules, Inc.,

857 F. Supp. 367, 372 (D.N.J. 1994). Documents prepared in the
regular course of business are not protected. Rockwell Int’l,
897 F.2d at 1266. Documents created for other purposes that are
useful

in

subsequent

litigation

are

also

not

attorney

work-

product. In re: Gabapentin Patent Litigation, 214 F.R.D. 178,
184 (D.N.J. 2003). Thus, a party seeking to invoke the workproduct doctrine must prove at least two elements. First, that a
7

One exception is PRIV 325 discussed supra.
16

document

was

prepared

because

of

reasonably

anticipated

litigation. Second, that the material was prepared because of
the prospect of litigation and for no other purpose. Id. at 18384.
Whether
litigation

a
is

document
a

was

difficult

prepared

in

determination.

anticipation
Id.

In

of

general,

however, a party must show more than a “remote prospect”, an
“inchoate possibility”, or a likely chance of litigation.

Id.

“[A] party must show that there existed an identifiable specific
claim of impending litigation when the materials were prepared.”
Id. (citation and quotation omitted). The “dominant purpose” in
preparing

the

litigation

document

and

the

must

concern

be

the

must

be

concern

about

“objectively

potential

reasonable.”

Tractenberg, 416 N.J. Super. at 374. The mere involvement of an
attorney

does

not,

in

itself,

evidence

that

a

document

was

prepared in anticipation of litigation. Id. Documents created
for other purposes that prove useful in subsequent litigation
are not attorney work-product. Gabapentin, 214 F.R.D. at 184. To
be

sure,

however,

a

document

may

be

protected

by

the

work-

product doctrine even though it was not prepared by an attorney.
For

example,

the

work-product

doctrine

may

apply

even

if

a

document was prepared by a party’s agent. United Coal Companies
v. Powell Const. Co., 839 F.2d 958, 966-67 (3d Cir. 1988).

17

Riddell’s work-product assertion is rejected because there
is no evidence its documents were prepared because of impending
litigation. It is true that many of Riddell’s documents were
prepared

because

of

Congressional

inquiries

into

concussions.

However, no evidence exists to show this was likely to lead to
litigation. As noted, the mere “remote prospect” or “inchoate
possibility”

of

litigation

does

not

satisfy

the

work-product

doctrine. Gabapentin, 214 F.R.D. at 183. The same is true for
Riddell’s concerns that its literature may result in lawsuits,
and

even

the

instance

where

Riddell

investigated

a

crushed

helmet. The work-product doctrine does not apply unless a party
shows “there existed an identifiable specific claim of impending
litigation when the materials were prepared.” Id. (citation and
quotation omitted). Riddell has not made this showing. Further,
it is not insignificant that Roche’s Declaration does not even
attempt

to

doctrine.

justify

Nowhere

the

does

applicability
Roche’s

of

Declaration

the

work-product

say

or

indicate

Riddell’s documents were prepared in anticipation of specific
litigation.
2.

Riddell’s Documents

The Court now turns to the 272 documents at issue.
a.

62 Documents Exchanged Amongst Riddell’s
Employees

18

Plaintiffs

challenge

62

designations

involving

communications between Riddell’s sales employees. 8 Riddell argues
the

sales

because

employees

they

communication,

were

were:
(2)

necessary

(1)
sales

sales

to

these

managers

representatives

communications

relevant
necessary

to
to

a
the

collection of information for an attorney, or (3) sales managers
and

representative

“seeking,

receiving

or

disseminating

legal

advice so that they acted appropriately with respect to customer
inquiries or issues.” RLB at 7. Plaintiffs argue defendants’
documents

are

not

privileged

because

they

involve

“routine

conversations” with sales employees.
Having reviewed the 62 documents at issue, the Court finds
that most of the documents are not privileged. At bottom, most
of

the

challenged

documents

address

corporate

“messaging”

concerns and not legal issues or advice. This accounts for why
most

of

the

documents

were

prepared

by

sales

personnel

and

communications managers. Without summarizing each document, the
documents generally concern non-legal business issues such as
communications

between

and

about

high

schools

and

colleges,

comments on competitors’ helmets and literature, responses to
media inquiries, content of press releases, marketing slides,

8

These documents are listed on Exhibit I to Riddell’s Letter
Brief.
19

and content of marketing documents. These are all business and
not legal topics.
Frankly, the Court is hard pressed to decipher any legal
advice

or

purpose

to

these

62

documents.

To

the

extent

the

content of Riddell’s documents may touch on legal issues, which
the

Court

because

does

it

not

is

find,

plain

the

documents

the

predominant

are

not

privileged

purpose

of

the

communications was to address business and not legal concerns.
The

attorney-client

legal

advice

which

privilege

protects

disclosures

to

might

be

absent

privilege.

not

made

the

obtain

Westinghouse Elec. Corp., 951 F.2d at 1423-24. After reviewing
Riddell’s
privilege

documents

assertions

“Communications

which

matters

fall

do

the

not

Court
do

not

relate

to

within

the

is

convinced
satisfy

business
protection

that
this

rather
of

the

Riddell’s
criteria.
than

legal

[attorney-

client] privilege.” Alpha Painting & Constr. Co., Inc. v. DE
River Port Authority of the Comwlth. of PA,

F. Supp. 3d

,

2016 WL 5339576, at *12 (D.N.J. Sept. 23, 2016).
In In re Seroquel Prods. Liab. Litig., No. 6:06-md-1769,
Orl-22DAB, 2008 WL 1995058, at *7 (M.D. Fla. May 7, 2008), the
court noted that when documents concern business decisions or
are the product of corporate committees responsible for business
decisions regarding technological, science, public relations or
marketing issues, the party claiming the privilege must show
20

“the communications at issue are more than simply grammatical,
editorial,

technological,

scientific,

public

relations,

or

marketing suggestions, and are specifically in the nature of
legal

advice.”

Further,

in

order

to

prevent

abuse

attorneys

claiming the privilege must demonstrate that the communication
would not have been made but for the client’s need for legal
advice or services. Id. at *8 (citation omitted). Riddell has
not made this showing.
To be sure, the Court is not ruling that communications
between

sales

personnel

cannot

be

privileged.

The

Court

has

already discussed that these communications may be privileged if
they

are

necessary

to

provide

legal

advice.

Amongst

the

62

documents there are a handful that do not have to be produced.
The Court finds PRIV 102 (asking for legal advice on a proposed
contract), 576 (asking for legal advice on a draft letter), and
1448

(Legal

Hold

Notice

for

unrelated

litigation)

are

privileged. 9

9

Although Riddell did not specifically address each document it
claims is privileged, it highlighted a few examples to prove its
point. Presumably, Riddell attempted to pick out the best of the
bunch. Riddell’s examples are not convincing. For example, PRIV
007 is a series of emails concerning a youth helmet that had a
“cave in.” The emails do not involve legal advice but merely an
investigation of the incident. The email is not word-product for
the reasons discussed infra. PRIV 008 merely involves a
discussion about a press release. PRIV 104 discusses a
competitor’s offer to donate helmets to a high school. PRIV 707
discusses a media inquiry regarding Virginia Tech football
helmet ratings. None of these “illustrative” documents address
21

b.

210 Documents Exchanged with Third-Parties

Plaintiffs challenge 210 documents Riddell exchanged with
third-parties.

As

already

discussed,

the

Court

agrees

with

Riddell that its communications may still be privileged even
though it communicates with third-parties such as MSL. The key
issue

regarding

privilege

in

this

the

applicability

context

is

the

of

the

purpose

attorney-client
of

the

work

of

Riddell’s agents. If the primary purpose was to assist counsel
to render legal advice, the privilege applies. If the purpose
was to provide business or messaging advice, the privilege does
not apply. See generally Payton, 148 N.J. at 550-51; Emmanouil
v. Roggio, C.A. No. 06-1068 (GEB), 2009 WL 961275, at *2 (April
7, 2009)(the privilege does not extend to any advice which is
not legal in nature, i.e., business advice).
(1)

MSL

MSL is a public relations firm that consults with clients
on communication strategies, Riddell claims 178 MSL documents
are privileged. 10 For the same reasons most of Riddell’s sales
employees’ documents are not privileged, the same is true for
MSL. Simply stated, even if an attorney was copied on a MSL
issues necessary for legal advice. Even if a sliver of the
documents is necessary for an attorney to render legal advice,
it is unquestionably the case that the primary purpose of the
documents is related to Riddell’s business and not legal
concerns.
10 These documents are listed on Exhibit J to Riddell’s Letter
Brief.
22

email chain, the predominant purpose of MSL’s documents was to
provide business and communication advice, not legal advice. In
fact,

MSL

acknowledged

it

was

hired

“to

assist

in

public

relations effort.” See PRIV 381. This is evident by the subject
matter

of

MSL’s

documents

which

concern,

inter

alia,

how

to

respond to media inquiries, updates on relevant media coverage,
preparing

for

Congressional

testimony

developments

before
and

Congress,

general

updates

governmental

on

affairs

issues. Indeed, MSL acknowledged it was tasked to recommend a
comprehensive

communications

program

and

media

relations

strategy. See PRIV 381. To the extent attorneys were copied on
MSL’s documents it was merely for information purposes or for
general

comments

on

P.R.

strategy.

For

the

most

part

the

attorneys did not provide legal advice or input. If they did it
is not apparent their input was a material consideration.
Riddell highlighted a few documents in this category to
illustrate its argument that the designated MSL documents are
privileged. Once again the examples are not convincing. None of
the examples specifically mentions legal advice, opinions, or
litigation. Further, the overwhelming context of the documents
relates to P.R. and messaging issues. If an attorney is copied
on an email it appears to be incidental. None of the documents
reference a legal principle nor engage in any legal analysis. If

23

an attorney gave any input the attorney was simply weighing in
on business, messaging or marketing issues.
For

example,

one

series

of

emails

from

November

2009

discusses a potential “Riddell Innovation History” and a Today
Show

segment

on

a

competitor’s

helmet.

(PRIV

0639).

Other

documents concern how to answer potential questions at hearings
(PRIV 0042), the content of videos on YouTube (0058, 455) how to
address

Congressional

assumptions

about

helmets

(00231),

comments on a competitor’s testimony before Congress (00277),
and Riddell testimony before Congress (01622). As to this last
document, although edits appear to be made by a lawyer, the
edits are of a factual nature and do not involve legal advice or
opinions.

Louisiana

Mun.

Police,

253

F.R.D.

at

305

(“In

all

instances, the facts underlying any given communication remain
discoverable.”); In re Vioxx, 501 F. Supp. 2d at 807 (rejecting
Merck’s

assertion

that

its

lawyers

edits

to

documents

were

privileged because it did not explain how this primarily related
to legal assistance being provided).
All
support

of
the

the

illustrative

Court’s

examples

conclusion

that

Riddell
the

relies

purpose

of

upon
MSL’s

documents relate to standard P.R. and messaging issues rather
than legal advice, opinions or issues. The fact that Riddell,
like all businesses, wants to portray itself in a helpful light
is not worthy of attorney-client privilege protection, even if
24

an attorney is copied on an email. A “media campaign is not a
litigation strategy” even if an attorney deems it advisable.
NXIVM

Corp.

Further,
bolster

v.

a
a

O’Hara,

public
party’s

privileged.

241

F.R.D.

relations
public

McNamee

v.

109,

campaign

141

and

(N.D.N.Y.

media

image

and

reputation

Clemens,

No.

09CV

2007).

strategy
is

also

1647(SJ),

to
not

2013

WL

6572899, at *6 (E.D.N.Y. 2013). After reviewing the content and
context of Riddell’s documents, the Court simply does not accept
Riddell’s conclusion that its examples reflect “legal advice.”
RLB at 12. Ordinary public relations advice and working with
counsel to evaluate the public reaction to different strategic
alternatives

is

not

privileged.

Egiazaryan

v.

Zalmayez,

290

F.R.D. 421, 432 (D.N.J. 2013); see also Haugh v. Schroder Inv.
Mgmt. N. Am. Inc., No. 02 Civ. 7955 DLC, 2003 WL 21998674, at *3
(S.D.N.Y.

Aug.

desirable

at

25,

times

2003)(“Some
to

attorneys

conduct

a

media

may

feel

campaign,

it

but

is
that

decision does not transform their coordination of a campaign
into legal advice”).
This is not the first case, nor will it be the last, where
lawyers claim communications with public relations consultants
are

privileged.

these

The

communications

communications

are

common

theme

is

the

if

made

in

in

the

public

cases

relations

connection

with

that

protects

consultants’
ongoing

or

anticipated litigation and the advice is directed at supporting
25

the client’s litigation position, or the P.R. input is necessary
for an attorney to provide legal advice. See generally Grand
Canyon Sidewalk Development LLC v. Cieslak, C.A. No. 2:15-cv1189-JAD-GWF,
Aug.

13,

2:13-cv-00596-JAD-GWF,

2015)(collecting

cases).

2015

WL

Whether

4773585

or

not

(D.

MSL

is

Nev.
the

“functional equivalent” of Riddell’s in-house P.R. department is
not determinative here. If MSL simply provided ordinary public
relations advice its communications are not privileged. NXIVM
Corp. v. O’Hara, 241 F.R.D. 109, 141 (N.D.N.Y. 2007). On the
other

hand,

if

MSL

provided

information

needed

by

Riddell’s

attorneys to render legal advice its information is privileged.
In re Bristol-Myers Squibb Securities Litigation, C.A. No. 001990 (SRC), 2003 WL 25962198, at *4 (D.N.J. June 25, 2003). 11 At
bottom, most of MSL’s documents are not privileged because they
reflect

ordinary

public

relations

services

done

for

business

purposes. The documents do not reflect or even mention that the
services were needed for legal advice. “If a communication would
have been made even if legal advice were not explicitly sought,
then it is difficult to say that the communication’s primary
11

New York takes a narrower position that the Court is not
applying here. In Egiazaryan, 290 F.R.D. 431, the Court stated
the party asserting the privilege must show the disclosure to
the public relations firm was necessary for the client to obtain
informed legal advice. Also, the necessity element “means more
than just useful or convenient, but rather requires that the
involvement of the [P.R. Firm] be nearly indispensable or serve
some specialized purpose in facilitating the attorney-client
communications” (citation and quotation omitted).
26

purpose was to seek legal advice.” U.S. v. ISS Marine Services,
Inc., 905 F. Supp. 2d 121, 128 (D.D.C. 2012).
Riddell’s reliance on Copper Market, supra, is misplaced.
In that case the plaintiffs alleged the defendants conspired to
manipulate global copper prices and sought documents from RLM, a
public

relations

(Sumitomo).

However,

anticipated

a

investigation
object

of

firm

that

RLM

Commodities
and

RLM’s

related

consulted

was

only

Futures

hired

Trading

litigation.

engagement

was

with

defendant

after

Sumitomo

Commission

Id.

“the

a

at

215.

(“CFTC”)

The
of

management

chief
press

statements in the context of anticipated litigation[.]” Id. at
215-16.

This

was

not

surprising

since

RLM

specialized

in

litigation related crisis management. Id. at 221. The role of
MSL and Riddell’s other consultants in the case is not remotely
similar to the role RLM played in Copper Market. Here, MSL was
hired for ordinary P.R. work. Unlike Copper Market there was no
anticipated or pending litigation for which MSL’s services were
used or needed. Nor did MSL provide information to Riddell’s
attorneys that was necessary for them to provide legal advice.
To

be

sure,

however,

some

of

MSL’s

documents

are

privileged. These are instances where MSL’s documents indicate
actual

legal

advice

was

conveyed

These documents include: PRIV

216

or

where

(legal

this

analysis

is

apparent.

by

outside

counsel), 218 (only 1/4/11, 11:10 a.m. email asking for legal
27

insight),

325

(work-product

regarding

Schutt

Sports

lawsuit),

390 (legal analysis of legislation), 443 (only as to 1/14/11,
12:22

p.m.

email

referring

to

attorney

advice),

448

(legal

analysis of box layout), 455 (legal analysis regarding videos),
560 (legal analysis re letter to Congress), 666 (legal analysis
re

O

&

A),

and

1716

(only

as

to

10/15/10,

1:14

p.m.

email

referring to legal advice).
(2)

Cohn & Wolfe, Empire Green and Headrush Creative

These companies served as marketing agents or consultants
for Riddell. RLB at 13. Their 21 documents reflect that Riddell
consulted with the companies with regard to a documentary video
and

some

literature. 12

For

the

reasons

already

discussed

the

documents merely reflect business and commercial communications
that are not privileged. However, a number of these documents
reflect

and

discuss

privileged

attorney

advice

and

communications. The following documents fit into this category
and do not have to be produced because they are privileged: PRIV
766

(legal

analysis

(preparation

for

appropriate

legal

regarding

attorney

use

language

meeting),
for

of

818

video),

terminology),

(discussion
840

(legal

770

regarding
analysis

regarding use of terminology), 1186 (email discussing attorney

12

These 21 documents are listed on Exhibit K to Riddell’s Letter
Brief.
28

advice),

1199

(email

discussing

attorney

advice),

and

1285

(legal analysis regarding use of terminology). 13
(3)

SFIA

The Sports & Fitness Industry Association (“SFIA”) is the
trade association of leading industry sports and fitness brands,
suppliers,

retailers

and

partners.

RLB

at

13.

Tom

Cove

is

President of the SFIA. Id. These 10 documents the Court reviewed
in

camera

involve

Congressional

and

emails

from

regulatory

or

to

Tom

developments

Cove
and

that

discuss

updates. 14

In

particular, there is a discussion regarding a bill drafted by
Senators

Udall

and

Rockefeller

that

would

give

additional

authority to the FTC regarding sports or fitness products and
safety benefits (“Youth Sports Concussion Act”). Except for PRIV
488,

these

documents

are

not

privileged

because

they

do

not

involve legal advice. For the most part the documents merely
involve a discussion of the particulars of Senator Udall’s bill.
Although the Court acknowledges there are emails sent to or from
13

The Court agrees with Riddell that PRIV 770 is privileged.
The Court disagrees as to 400 (summary of a non-privileged
discussion with Congressional Staff), 1187 (comments on videos)
and 1285 (use of a new marketing term). PRIV 1286 is interesting
in that it mentions that attorneys did not object to a new
marketing term to replace CRT. However, Riddell did not satisfy
its burden to show the attorney’s input was legal in nature.
Leonen v. Johns-Manville, 135 F.R.D. 94, 95 (D.N.J. 1990)(in
order to prevent parties from abusing the attorney-client
privilege to thwart otherwise proper discovery, “the claimant
must demonstrate that the communication would not have been made
but for the client’s need for legal advice or services”).
14 These 10 documents are listed on defendants’ Exhibit L.
29

attorneys, the emails are not privileged because they do not
contain legal advice. PRIV 488 is different in that it conveys
legal advice prepared by an attorney acting in a legal role
rather than a lobbying or P.R. role. The Court finds that the
community of interest (“COI”) doctrine applies to this document.
See McLane Foodservice, Inc. v. Ready Pac Produce, Inc., C.A.
No. 10-6076 (RMB/JS), 2012 WL 1981559 (D.N.J. June 1, 2012).
Since SFIA’s other nine documents are not privileged, there is
no need to decide if the COI doctrine applies. The COI doctrine
does

not

create

a

new

or

separate

privilege.

Instead,

it

prevents waiver of the attorney-client privilege when otherwise
privileged communications are shared with a third-party. Id. at
*4. 15
Conclusion
For the reasons discussed above, plaintiffs’ challenges to
the 272 documents on defendant’s privilege log are SUSTAINED in
part

and

OVERRULED

in

part.

As

is

evident

from

the

Court’s

analysis, most of Riddell’s documents are not privileged. This
results from the fact that the documents do not reflect any
legal

analysis,

opinions

or

advice,

and

are

merely

routine

business correspondence. The Court finds that the unprotected
documents

were

not

made

for

the

15

purpose

of

obtaining

legal

The Court disagrees with Riddell that PRIV 359 is privileged.
PRIV 359 is simply a non-privileged draft letter to Senator
Rockefeller.
30

advice from an attorney or to assist an attorney to formulate
and render legal advice to a client. To the extent a legal issue
is touched upon, it is evident the predominant purpose of the
document was business in nature. Further, Riddell’s privilege
claims are not supported by competent evidence. Roche’s general
Declaration does not satisfy Riddell’s burden of proof. To the
extent the Court sustained a privilege assertion, it was because
the

privileged

nature

of

the

document

was

apparent

from

face, content or context of the document.
An accompanying Order will be entered.
s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
Dated:

December 5, 2016

31

the