Clemens Loses Bid to Extend Privilege
Former star baseball pitcher Roger Clemens cannot use the attorney-client privilege to keep communications with his public relations team and agents out of a defamation suit brought by his one-time trainer, a federal judge has ruled.
Eastern District Magistrate Judge Cheryl Pollak (See Profile) said trainer Brian McNamee has a right to emails and other communications as he presses his claim that Clemens launched a coordinated smear campaign to discredit McNamee after he made claims that he injected Clemens with illegal performance enhancing drugs.
Pollak held that the vast majority of public relations and agent communications were not made for reasons of formulating litigation strategy.
Pollak also ruled that Clemens, who during a 24-year career pitched for four teams including the New York Yankees and the Boston Red Sox and was a seven-time Cy Young Award winner, had waived any claims of attorney client privilege and work product protection for the files involving his agents and public relations firm.
The reason, Pollak said in McNamee v. Clemens, 09 cv 1647, was that the Clemens legal team, led by Rusty Hardin of Rusty Hardin & Associates in Houston, Texas, failed to produce an adequate privilege log—a record of all withheld communications and documents required in order to give the other side, and the court, a chance to assess the claims of privilege.
In 2007, former U.S. Senator George Mitchell released the "Mitchell Report" on the use of steroids and other performance enhancing drugs in baseball. The report included statements by McNamee that he had injected Clemens with performance enhancing drugs, claims that Clemens vehemently denied.
McNamee brought suit in 2008 claiming Clemens "immediately launched a coordinated public relations offensive against McNamee to brand him a liar." Clemens responded by filing a defamation suit against McNamee in Texas and, according to McNamee, "obtained from Congress a public hearing to further brand McNamee a liar."
Five days after the Mitchell report was issued, Hardin hired public relations professional Joe Householder and his firm, Public Strategies Inc.
When McNamee, represented by Richard Emery of Emery Celli Brinckerhoff & Abady, moved earlier this year to compel production of communications from Public Strategies, Clemens responded that the material was being withheld on the grounds of attorney-client privilege and work product, as Clemens insisted that Householder was "a full-fledged, yet non-attorney, member of [defendant's] legal team."
Clemens asserted the same privileges when McNamee moved to compel production of all communication with Randal Hendricks of Hendricks Sports Management, who along with his brother, Alan Hendricks, has long served as Clemens' agent. McNamee claimed Randal Hendricks "performed 'marketing' services for Clemens…in an attempt to bolster Clemens' reputation by smearing McNamee's."