By: Renee Choy Ohlendorf

Attorneys working with public relations consultants on trial publicity beware: The public relations firm’s reports may be fair game for discovery. An Illinois trial court recently ruled that no privilege applied to shield a public relations consultant’s proposal from discovery, even when it was made to a defendant in pending litigation.

Holiday Shores Sanitary District, a public water provider in Madison County, Illinois, filed a class action lawsuit against Syngenta. The plaintiffs allege that Syngenta’s herbicide atrazine contaminated public water supplies through run-off from farm fields. Holiday Shores Sanitary District v. Syngenta Crop Protection, Inc.

Syngenta retained a public relations firm and entered into a confidentiality agreement with the firm to “assist Syngenta in developing a public relations proposal relating to the lawsuit.” The public relations firm prepared a detailed proposal to mount a negative publicity campaign against the county judiciary. The proposal allegedly recommended characterizing the Madison County judicial system as a “‘judicial hellhole’ and a source of ‘jackpot justice.’” It also suggested using themes like “[n]ow Madison County is going after the family farmers” and “[a]nother Madison County class action case going amuck.”

Syngenta withheld the document from discovery “on the basis of the litigation consultant privilege.” The trial court ordered Syngenta to produce the proposal. The court ruled that the public relations firm’s actions were not “litigation support,” but “pertain[ed] to business decisions.” The proposal “has nothing to do with trial strategy or the preparation of this case for trial . . . but much to do with fostering a negative public perception of our judicial system,” the court concluded.

Read the full article Court Orders Production of “Judicial Hellhole” Public Relations Proposal, on the American Bar Association's website.

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