Privilege for Corporate Consultants

Corporations use consultants and sometimes the consultants address matters that wind up in litigation. Litigation consulting experts are protected from disclosure by the work-product doctrine and the attorney-client privilege but can a corporation assert privilege over work product of consultants that are hired to advise the corporation on business matters, independent of litigation? The answer seems to be "No":

The attorney-client privilege does not extend to consultants where the communications are intended to assist in a client's business decisions. Byrnes v. Empire Blue Cross Blue Shield, 1999 U.S. Dist. LEXIS 17281, * 6 (S.D.N.Y. 1999).

The work product privilege also does not apply to consultants retained to provide business advice. U S. v. Adlman, 68 F.3d 1495, 1500 (2d. Cir. 1995). Similarly, the later designation of a business consultant as a litigation consultant cannot cloak previous work product with privilege. Id. Nor can the work product doctrine be asserted to prevent disclosure of documents that would have been created in essentially the same form irrespective of litigation. U. S. v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998).