The attorney–client privilege protects from compelled disclosure communications between a client and its lawyer, but not facts. Forty years ago, Justice Rehnquist told us that, for privilege purposes, “a fact is one thing and a communication concerning that fact is an entirely different thing.” Upjohn Co. v. United States, 449 U.S. 383, 395–96 (1981). So, how does this fact-versus-communication distinction apply when a client attaches a document (fact) to an otherwise privileged email (communication)? On the one hand, a document (fact) is a document (fact); but on the other hand, a document (fact) attached to an email (communication) is a communication. And that’s a fact.
Federal district courts—the forum where we see the most published privilege-related opinions—take two approaches. A perfect illustration arose in early 2021 when federal courts in Utah and Minnesota came to different conclusions on this important issue.
In Doe v. Intermountain Health Care, Inc., 2021 WL 151090 (D. Utah Jan. 16, 2021) (available here) (opinion amended on unrelated grounds available here), an IHC employee sued the company and its third-party administrator over failing to pay certain insurance benefits. During discovery, IHC refused to produce certain emails and their attachments, claiming that the attorney–client privilege protected both.
IHC admitted that the email attachments, standing alone, did not contain privileged information. The company argued, however, that the privilege covers them because revealing the content of those attachments would reveal the substance of privileged communications. It cited three primary cases in support: Hilton-Rorar v. State & Fed. Commc’ns, 2010 WL 1486916 (N.D. Ohio Apr. 13, 2010); Barton v. Zimmer, 2008 WL 80657 (N.D. Ind. Jan. 7, 2008); and Muro v. Target Corp., 250 F.R.D. 350 (N.D. Ill. 2007).
The court disagreed and held that IHC must independently establish privilege protection for each attachment. Even if the privilege covers the email, “attachments to the email are not privileged unless the attached document is privileged when the client created it.” The court relied almost entirely on Fisher v. United States, 425 U.S. 391 (1976), where SCOTUS rejected the privilege for tax-related documents even though the taxpayer’s lawyer possessed them.
The court rejected IHC’s reliance on Hilton-Rorar, Barton, and Muro because those cases “ignored Fisher.” And it feared that allowing a client to claim privilege over pre-existing, non-privileged documents by simply attaching them to an email to a lawyer “could shield quantities of highly relevant and fully discoverable documentary evidence through the simple expedient of conveying copies to its attorney.” In short—
A document that was not privileged in the client’s hands cannot magically become privileged merely by sending it to an attorney in search of legal advice.
Circumventing Fisher, the court found, “cannot be that easy.”
The court in Willis Electric Co., Ltd. v. Polygroup Trading Limited, 2021 WL 568454 (D. Minn. Feb. 16, 2021) (available here), saw things differently when presented with the identical email-attachment issue. In this patent-infringement case, the defendant (Polygroup) asked the court to compel the plaintiff (Willis) to produce an email from a Willis employee to Willis’s patent counsel. Polygroup also sought production of the photo and video attachments to that email.
The court found that the privilege protected the email but that the photos and videos were not independently privileged. The question, though, was whether the privilege nevertheless protected these images because the employee attached them to the privileged email. Implementing Upjohn’s privilege ruling, the court noted that most lower courts agree that “an otherwise-discoverable attachment is not automatically cloaked in privilege.” (emphasis by the court). But courts differ on what privilege protection, if any, email attachments should receive.
One approach is the view that, even if the attachments are not privileged, “the act of sending the attachments is privileged.” The other approach—the one adopted by the Utah court in Intermountain Health—is that each attachment must independently qualify for privilege protection.
The Minnesota court adopted the “act of sending” approach and expressly rejected the Utah court’s analysis in Intermountain Health for three reasons.
First, the court “respectfully believed” that the Intermountain Health court misread the decisions cited by IHC—Hilton-Rorar, Barton, and Muro. Those opinions did not, as the Utah court claimed, wrap the attachments’ underlying contents in privilege. Rather, those courts protected “a party from having to disclose that those specific documents were sent to counsel in connection with a request for legal advice.”
Second, the court did not read Fisher as prohibiting any protection for email attachments. And third, requiring production of attachments “creates a risk that an opponent may reverse engineer the substance of a client’s request for legal advice.”
But Remember this Distinction
Now, the Minnesota court’s ruling does not mean that attachments to emails are not independently discoverable. Under this ruling, the privilege only protects “the instance of a document attached to a communication with counsel.” A copy of the same document—if the discovery request covers it—is independently discoverable. Indeed, the Minnesota court held that the privilege protected the email and its attachments but that the attachments—if housed separately elsewhere—were discoverable.
On which side of the duel does your jurisdiction reside?