Dual–Purpose Emails to In-House Counsel: Are They Privileged? 5

Whether the corporate attorney–client privilege protects an in-house attorney’s email communication depends on whether the communication was made for the purpose of counsel rendering legal advice.  This determination often depends whether the in-house lawyer was acting in a legal or business-related capacity.

But many emails constitute dual-purpose communications, meaning they combine business advice and legal advice.  Courts apply two standardsSlide1 to determine whether these dual–purpose emails receive privilege protection.

Because-of Standard

The so-called “because of” standard requires in-house lawyers to prove that, under the totality of the circumstances, including the nature of the document and the factual situation, the document was prepared because of litigation or a legal purpose.  Courts borrow this standard from the work–product doctrine, but apply it where mixed communications involve both business and legal advice.  See In re CV Therapeutics, Inc. Sec. Litig., 2006 WL 1699536 (N.D. Cal. June 16, 2006).

Primary Purpose Standard

Under the primary purpose standard, the privilege protects in-house lawyers’ communications involving business and legal advice if the primary purpose of the communication is to obtain or give legal advice.  See United States v. ChevronTexaco Corp., 1996 WL 264769 (N.D. Cal. May 30, 1996).

The “because-of” standard requires a lesser burden of proof, demanding that in-house lawyers simply show that the putatively privileged communication was prepared because of legal issues.  The primary purpose standard requires a higher burden of proof, focusing on whether each communication was for the primary purpose of rendering legal advice.

In a thorough opinion, the USDC for the District of Nevada recently evaluated both standards and applied the primary purpose standard to in-house counsel email communications.  Although noting that the “because of” standard had supplanted the “primary purpose” standard in some jurisdictions, the court found that the Ninth Circuit had not done so.  And noting that “merely copying or ‘cc-ing’ legal counsel, in and of itself, is not enough to trigger the attorney–client privilege,” the court reviewed each challenged email to determine whether the primary purpose of its creation was legal-advice related.  See Phillips v. C.R. Bard, Inc., 290 F.R.D. 615 (D. Nev. 2013).  You may access this educational decision here.