Since our last update, U.S. Magistrate Judge Marian W. Payson examined the topical issue of attorney-client privilege. In doing so, Judge Payson provided a detailed analysis of theories and exceptions necessary to determine whether certain communications constitute attorney-client communications protected from disclosure, including the agency exception and functional equivalent doctrine. Most notably for practitioners, both in-house and outside counsel, Judge Payson tackled a seemingly routine situation that results in a complex question: What happens to attorney-client privilege when there is a third-party consultant involved in the communications?

Introduction

In Narayanan v. Sutherland Global Holdings, No. 15-CV-6165T, 2018 U.S. Dist. LEXIS 12358, at *1 (W.D.N.Y. Jan. 25, 2018), plaintiff filed a motion to compel defendant, Sutherland Global Holdings, to produce documents as to which Sutherland asserted attorney-client privilege.