Internal-Investigation Emails between Non-Attorney Employees–Privileged?

If handled correctly, in-house counsel may delegate an internal investigation to a non-legal department.  The question arises whether the attorney–client privilege applies to investigation-related emails between non-attorney employees.  These type of emails often appear business-related and far removed from the company’s legal department.

In Crabtree v. Experian Info. Solutions, Inc., 2017 WL 4740662 (ND Ill. Oct. 20, 2017), the USDC for Illinois’ Northern District held that the corporate attorney–client privilege applies to emails between non-attorney employees so long as a lawyer has “some relationship to the communication” and the email would reveal the “substance of a confidential attorney–client communication.”

This case, available here, provides a short but good read on this tricky internal-investigation privilege issue.

In-House Counsel Delegates Internal Investigation

After receiving confidential information about one of its users, Experian’s in-house counsel asked its compliance division to conduct an internal investigation and report back to the legal department.  The investigation included emails between non-attorney employees, and the plaintiff in a subsequent putative FCRA class action moved to compel these communications.

Upjohn’s Progeny Protects Communications

The plaintiff argued that Upjohn does not support the privilege’s application to non-attorney employees “even if they are facilitating an investigation at the direction of an attorney.”  The court noted that, while Upjohn is “not the apex” of the privilege’s protection of internal investigations, it is the “genesis.”  Upjohn’s progeny “confirms that communications between non-lawyer employees often warrant protection from disclosure.”

The privilege applies to non-attorney communications when “the communications rest on confidential information obtained from the client, or would reveal the substance of a confidential communication by the client.”  While direct lawyer involvement is unnecessary to secure the privilege, a lawyer must have “some relationship to the communication.”

Business v. Legal Advice

The plaintiff argued that the employees’ emails pertained to business—not legal—issues.  And this had some surface-level appeal because the investigation concerned Experian’s ongoing business relationship with one of its users.  But the court held that the privilege protects “an attorney’s legal advice about a business decision,” and agreed that Experian “understandably sought legal advice about a significant business decision to ensure any action it took complied with FCRA regulations.”

Good Privilege Log—No In Camera Review Necessary

Somewhat remarkably, the court did not require Experian’s in-house counsel to submit a sworn declaration attesting that he or she ordered the internal investigation for legal-advice purposes.  It appears that Experian satisfied its burden by submitting a well-worded privilege log, which you may review here.

For example, Experian’s description for one email between two non-attorney employees stated—

Attorney-Client: email reflects communications between Experian employees regarding investigation launched and conducted at the request of the Legal Department and for the Legal Department.

This email sounds quite legal, so the judge bought it and rejected plaintiff’s request that he conduct a full in camera review of emails between non-attorney employees.