Roger Clemens Strikes Out On Privilege Arguments

Roger Clemens didn't get up to bat very often in his baseball career but when he did in federal court in the Eastern District recently, he struck out! Plaintiff, Brian McNamee, a former athletic trainer for the New York Yankees, commenced a lawsuit for defamation against defendant, Roger Clemens, one of the greatest and most feared Major League Baseball pitchers of all time. According to the complaint, McNamee alleges that Clemens waged a defamatory public relations campaign against McNamee in order to ruin McNamee's reputation and brand McNamee a liar, in retaliation for testimony given by McNamee to Congress that McNamee had injected Clemens with performance enhancing drugs (PEDs).

As it turns out, Clemens is just as aggressive in litigation as he was on the pitcher's mound. During the discovery phase of the matter, McNamee served a discovery demand on Clemens in which McNamee requested the production of all communications Clemens had with his public relations strategist, Joe Householder, and Householder's firm, Public Strategies. McNamee also demanded from Clemens all communications Clemens had with Randal Hendricks and Hendricks Sports Management. Clemens refused to produce the requested information, claiming that it was subject to the attorney-client privilege and/or constituted work product.

In support of his claim that communications with Public Strategies were shielded from discovery, Clemens argued that Householder was "a full-fledged, yet non-attorney, member of the [Clemens'] legal team" (decision, p. 2). Public Strategies had been hired by Clemens shortly after Senator George Mitchell released the "Mitchell Report," which included statements by McNamee that McNamee had injected Clemens with PEDs. Clemens claimed that documents and correspondence with Public Strategies were privileged, because Public Strategies was hired to assist Clemens' legal team in devising legal strategy. In addition, Clemens argued that Hendricks was hired as a legal advisor in 1983 and acted as "the equivalent of in-house counsel... and [was] an active member of the team of attorneys representing Clemens [in this action]" (decision, p. 3). Because Clemens refused to produce the requested documents, or even produce a privilege log, McNamee filed a motion to compel.

On Sept. 17, 2013, Magistrate Judge Cheryl Pollak, in McNamee v. Clemens, (09-cv-01649 (SJ)(CLP) Sept. 17, 2013), issued a decision granting, in large part, McNamee's motion to compel. The decision is significant for a number of reasons. First, it highlights the severe penalties that can result from a party's failure to properly produce a...