Kevin Spacey’s legal troubles have taken a costly turn as the production companies behind Netflix’s House of Cards recently asked a California court to confirm an arbitration award of almost $31 million against Spacey for breach of contract. In 2017, eight House of Cards crew members came forward to accuse Spacey of sexual harassment and sexual assault. The producers argued that reports of Spacey’s alleged misconduct forced them to halt production on House of Cards, costing millions.

This arbitration award is only the latest of Spacey’s legal difficulties related to his alleged actions. An October ruling by Judge Lewis A. Kaplan in Rapp et al v. Fowler granted a motion to compel a series of emails exchanged between Spacey, his lawyers, his manager, and his PR consultants regarding how Spacey should respond to allegations published in Buzzfeed about Spacey’s sexually assaulting a minor in 1986.

Judge Kaplan rejected Spacey’s argument that these emails were privileged because they were created in the course of obtaining legal services. Although Spacey and his PR team may well have expected legal charges in the wake of the Buzzfeed article, their primary concern was protecting Spacey’s reputation rather than defending against or forestalling an indictment.

This case is a reminder that clients can waive privilege by sharing otherwise protected information with a third party—such as a PR consultant—unless that disclosure was necessary to obtain legal services. In reaching this conclusion, Judge Kaplan cited Calvin Klein Trademark Tr. v. Wachner, where the Southern District of New York also found that communications with a PR firm were not privileged. Although not cited by Judge Kaplan, a California court reached a similar conclusion in Behunin v. Superior Court.

Why Businesses Should Take Note

The primary takeaways from Spacey’s legal woes are that: (1) an alleged harasser may have individual liability associated with his actions—both to the victim and to the employer; and (2) defendants in such cases must understand that advice regarding a public response to controversy is not necessarily legal advice and may be discoverable. This is the case even if the controversy regards allegations of illegal conduct. Spacey’s lawyers, who were included on the email exchange between Spacey and his PR team, did make some comments that constituted legal advice, but Judge Kaplan held that these privileged insertions could be subject to redaction, though the entire email thread was not privileged. Therefore, in a silver lining for Spacey, it does not appear that his lawyers necessarily waived privilege by sharing these specific comments with third parties like Spacey’s PR consultants.

On the whole, however, businesses dealing with a reputational crisis need to be aware that communications regarding press strategy or response may be discoverable. Simply looping in an attorney or restricting the discussion to potential legal allegations will not necessarily render such communications privileged.

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.

Photo of Dixie Morrison Dixie Morrison

Dixie Morrison is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She is a member of the Discrimination, Harassment, & Title VII and the Labor-Management Relations practice groups.

Dixie assists clients across a…

Dixie Morrison is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She is a member of the Discrimination, Harassment, & Title VII and the Labor-Management Relations practice groups.

Dixie assists clients across a variety of industries in litigation and arbitration relating to wrongful termination, discrimination, harassment, retaliation, wage and hour, trade secrets, breach of contract, and whistleblower matters in both the single-plaintiff and class and collective action contexts. She also maintains an active traditional labor and collective bargaining practice and regularly counsels employers on a diverse range of workplace issues.

Dixie earned her J.D. from Harvard Law School, where she was the Executive Editor of Submissions for the Journal of Sports and Entertainment Law. Dixie received her B.A., magna cum laude, from Pomona College. Prior to law school, she served as a labor and economic policy aide in the United States Senate.

Photo of Morgan Peterson Morgan Peterson

Morgan Peterson is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She is a member of the Wage and Hour and the Class and Collective Action practice groups.

Morgan assists clients across a…

Morgan Peterson is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She is a member of the Wage and Hour and the Class and Collective Action practice groups.

Morgan assists clients across a variety of industries with litigations and arbitrations relating to wrongful termination, discrimination, harassment, retaliation, wage and hour, and whistleblower matters in both the single plaintiff and class and collective action contexts. She also counsels employers on a diverse range of workplace issues and their policy and handbook development. Morgan maintains an active pro bono practice representing individuals in immigration matters and providing employment counseling to non-profit organizations.

Morgan earned her J.D. from U.C. Irvine School of Law, where she was an Executive Editor of the UC Irvine Law Review and spent four semesters working in UCI’s Civil Rights Litigation Clinic. Morgan also served as a judicial extern for the Honorable John D. Early in the Central District of California. Morgan received her B.A., cum laude, from Tufts University.