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Top Class Actions (“TCA”) ran a website “that provides information, among other things, about class actions, class action settlements, and class action investigations.”  The site contained attorney advertising and articles concerning class actions and mass torts.  Defendants served a subpoena on TCA seeking, among other things, communications from claimants and with law firms.  The site’s assertion of privilege and work product protection was rejected.  In Re 3M Combat Earplug Products Liability Litigation v. Top Class Actions, LLC, No. 3:19-md-2885 Case No. 3:20-mc-74 (N.D. Fl. Mar. 12, 2021).

The court wrote: “The ‘attorney advertising’ on TCA’s website principally consists of articles paid for by attorneys looking for potential plaintiffs or putative class members (and identified as such).”

Some of TCA’s advertising articles include a form for a potential plaintiff or putative class member to fill out so the potential plaintiff or putative class member is contacted by an attorney. When … potential plaintiff or putative class member inputs information into the form and clicks “submit,” the information is transmitted directly to the law firm sponsoring the advertisement…. TCA retains the information submitted on the form in a database for the “sole purpose” of communicating about the advertising with law firms but otherwise holds the information in confidence…. TCA asserts that it “does not review the content of the form submissions for any purpose other than assisting the law firm with its marketing.”

TCA’s website stated:

Any information you submit to Top Class Actions may be shared with attorneys or law firms to facilitate formation of an attorney-client relationship. As such, it is intended that the information will be protected by attorney-client privilege, but it is possible that Top Class Actions or such attorneys may be ordered by a court of law to produce such information in certain legal situations. Also, you are not formally represented by a law firm unless and until a contract of representation is signed by you and the law firm.

There were other disclaimers in another part of the site.  For example:  “Any information you submit to Top Class Actions does not create an attorney-client relationship and might not be protected by attorney-client privilege. Instead, your information will be forwarded to an attorney or claims processing firm for the purpose of a confidential review and potential representation. You should not use this website to submit confidential, time-sensitive, or privileged information.”

Defendants served a subpoena on TCA, seeking communications from claimants and communications between TCA and plaintiffs’ law firms. TCA objected on the bases of privilege, work product, and relevance.

The court wrote:

The MDL Plaintiffs’ claim of attorney-client privilege fails because they cannot show that the information a prospective plaintiff (or “Claimant”) submitted in the form accompanying TCA’s advertising articles was made in confidence or treated as confidential…. The record belies any suggestion that a prospective plaintiff could subjectively or reasonably believe they were submitting information to a lawyer through TCA in confidence or that it would remain confidential. The form itself advised viewers of the possibility that the information would be disclosed….

The court explained: “There is no meaningful dispute that responses to an attorney’s questionnaire to solicit clients or evaluate potential claims can be privileged in certain circumstances.”  Those circumstances were not present here.

In sum, the information a prospective plaintiff submitted to a lawyer through TCA’s website is not subject to the attorney-client privilege because it was not made in confidence or expected to be treated as confidential. TCA’s website expressly disclaimed any such intentions when it warned viewers that it could not “guarantee that the information [viewers] submit[ted would] not end up in” the MDL Defendants’ hands.

The court also wrote that it was not persuaded the material qualified as work product and rejected the “common interest” exception to waiver.  “TCA’s role was to advertise for paying attorneys, not to assist them in litigation against the MDL Defendants.”

The case is described in Martina Barash, “3M May Peek at Earplug User Data Collected on Pre-Suit Web Form” (Bloomberg Law Mar. 15, 2021).