In re Copper Market Antitrust Litigation

In a deposition before the Commodities Futures Trading Commission (CFTC), an executive of Sumitomo Corporation (Sumitomo) (defendant) made an inculpatory revelation about Sumitomo’s conduct with respect to copper pricing. Expecting a resulting investigation from the CFTC, Sumitomo hired Robinson Lerer & Montgomery (RLM), a public-relations firm. Sumitomo was not familiar with Western media, and no one in Sumitomo’s communications department could speak English sufficiently to deal with English-speaking press. As a result, RLM became Sumitomo’s spokesperson when speaking with Western media. RLM consulted frequently with Sumitomo’s attorneys, providing information about Western media that the attorneys then used to provide legal advice to RLM on how to speak to the media in a way that would not harm Sumitomo’s legal rights. Viacom Inc. (plaintiff) sued Sumitomo, alleging price fixing of copper. Viacom subpoenaed RLM, seeking various documents and communications about RLM’s representation of Sumitomo. RLM asserted the attorney-client privilege and the work-product doctrine. Viacom moved to compel the documents and communications, arguing that RLM was a third party to Sumitomo and its lawyers and thus that the privilege did not apply to RLM. For the same reason, Viacom also argued that Sumitomo had waived any privilege in documents it had shared with RLM.