In-House Lawyer Required? Privilege Protects Emails between Non-Attorney Employees Reply

The USDC for the District of Kansas recently ruled that the attorney–client privilege does not necessarily require an in-house lawyer to author or directly receive an email, and that the 42923695 - group of multi-ethnic business partners discussing ideasprivilege may protect communications strictly between non-attorney employees.  Rowan v. Sunflower Elec. Power Corp., 2016 WL 3743102 (D. Kan. July 13, 2016).  You may read the decision here.

Background and Arguments

In response to plaintiff’s document requests, the defendant corporation produced a privilege log claiming that the attorney–client privilege covered email communications between two or more non-attorney employees.  Some of the communications merely copied the company’s in-house lawyer, and others did not involve him at all. More…

Citing Privilege Concerns, Texas Federal Court Enjoins DOL’s New Persuader Rule Reply

The USDC for the Northern District of Texas issued a nationwide preliminary injunction blocking the Department of Labor’s implementation of the so-called persuader rule, which would have required employers to disclose their lawyers’ advice regarding union-organizing activity.  Among other reasons, the court found that the new rule would eviscerate the attorney–client privilege.  NFIB v. Perez, 2016 WL 3766121 (N.D. Tex. June 27, 2016).  You may read the decision here.


The Labor Management Reporting and Disclosure Act of 1959 requires employers to filedisclosure reports with the Department of Labor regarding consultants, including attorneys, retained to engage in “Persuader Activities.”  29 U.S.C. § 433(a).

But the LMRDA provides an “advice exemption,” which states that an employer need not report an attorney’s advice if that is all that the attorney provides.  29 U.S.C. § 433(c).  More specifically, the LMRDA exempts privileged communications between an employer and its lawyer.  29 U.S.C. § 434. More…

Adequate Upjohn Warning? 10th Circuit Issues Instructive Decision Reply

In a case that reminds us of the importance of sufficient Upjohn warnings, the 10th Circuit rejected an executive director’s privilege assertion over his statements to corporate counsel and affirmed his criminal conviction.  The case raises the question whether counsel adequately advised the director about the privilege’s scope.  United States v. Merida, 2016 WL 3741867 (CTA10 July 12, 2016).  You may read the decision here.


Jason Brett Merida was the executive director of construction for the Choctaw Nation of Oklahoma.  After issues arose over the Nation’s payment for steel products, the Nation retained an attorney to investigate the issues and file suit against the steel provider.

The Nation’s executives ordered Merida to meet with its counsel, and he appeared to find the lawyer, a court reporter, and a request to take his sworn statement.  The lawyer told Merida that, “for purposes of the record,” his statement is “covered by the attorney-client privilege because [he does] work for the Choctaw Nation.” More…