NY Case: Attorney-Client Privilege

Attorney-client privilege protects the ability of attorneys and clients to communicate, and generally results in those conversations being “off limits” to courts and to their opponents.

It sounds as if NRA’s leadership is getting attorneys involved at every level of its decisions, and then arguing that the decisions cannot be probed. It’s insisting that it has reformed and made a 360 degree turn (why it chose that simile is beyond us, since that turn just puts you back on the same course), but if NY wants to probe that, “you can’t see that because all our reforms were based on the advice of our attorneys.”

The NY Attorney General is challenging that in a motion.

“In a November 29, 2022 decision (“Decision” or “Dec.”), the Special Master held that the NRA “seeks to cloak essentially all of its ‘course correction’ and ‘360° review’ initiatives as privileged merely because the NRA included attorneys in those efforts. . . .”

“As Plaintiff will demonstrate in its anticipated motion papers, the NRA put at issue and then blocked testimonial and document discovery of issues it asserts as evidence of its reform efforts, including: (1) the determination and calculation of excess benefits by Wayne LaPierre and other NRA executives (specifically that that the determinations and calculations were complete and accurate); (2) the NRA’s investigations, including into: (a) Defendant Wilson Phillips’ conduct as CFO and Treasurer and his receipt of private inurement, (b) whistleblower retaliation specifically relating to the Brewer firm, (c) board member travel, (d) use of an NRA vendor (Ackerman McQueen) to pay for personal expenses incurred by NRA employees, (e) diversions of assets, (f) Board member Marion Hammer payments, and (f) conflicts of interest, including the LaPierre family’s relationship with the owners of several of the NRA’s largest vendors; (3) the NRA’s handling of whistleblower complaints, including the investigation of the same and treatment of complaints (which it largely delegated to litigation counsel) as well as those complaints not deemed to be made by whistleblowers. . . (4) reform of vendor relationships and compliance with contract procurement policies including those relating to Membership marketing Partners and related entities, Ackerman McQueen, Affiliated Television International, and Gayle Stanford-related entities; (5) Audit Committee review of allegations of wrongdoing and conflict of interest by defendant Wayne LaPierre, the signing of the NRA’s 2019 IRS Form 990 filing, and allegations in the Complaint; and (6) work done by K&L Gates, Morgan Lewis, Don Lan, the Brewer firm and other outside counsel and consultants hired as part of the NRA “course correction” and touted by the NRA as evidence of its good faith reform efforts.”

“Specifically, Plaintiff will identify areas where the NRA used privilege as a sword and a shield, placing matters at issue but blocking Plaintiff’s ability to obtain discovery of the same and ask either that the NRA be precluded from introducing evidence relating to such topics or that privilege be deemed waived as to those topics, with discovery pertaining to these issues being permitted and other appropriate remedial relief. Plaintiff also asks for a conference to discuss next steps in this action, including the timing and process for summary judgment and expert evidence motions.”