After drafting a public-relations statement, companies’ internal communications folks regularly want to “run it by” the legal department.  And often with good reason—to ensure that the press release does not say something that could harm the company in any future legal action.  But is a “run it by the in-house lawyer” action sufficient to secure privilege protection in that subsequent legal action? One court said no—and forced a company to produce an email exchange with an in-house lawyer even though the email contained a “PRIVILEGED ATTY CLIENT INFORMATION” designation.  Slocum v. Int’l Paper Co., 2021 WL 5861499 (E.D. La. June 28, 2021).  You may read the decision here.

The Explosion

On a hot, humid mid-summer night in Southeast Louisiana, just a stone’s throw from the Mississippi River, something happened at a local paper mill. That something turned out to be an explosion that produced “black liquor,” a misty, dark substance that coated the facility and, nearby residents say, the local town.  (Sounds very John Grisham-ish, right?)

Looks Good!

The mill’s team reacted quickly. Within four hours of the “release event,” the mill’s Communications Manager sent an email containing a draft media statement to the company’s Global Media Relations Director, the Chief Communications Leader, and two of the company’s in-house lawyers. The Communications Manager inserted “PRIVILEGED ATTY CLIENT COMMUNICATION” in the email’s subject line.

The Chief Communications Leader responded with suggested edits to the media statement, and one of the in-house lawyers responded by saying that the edits “look good.”

The Issue

In a class-action lawsuit that followed, the plaintiffs moved to compel the mill to produce the email and draft media statement. The plaintiffs argued that the email contained no identifiable legal issue and that this manager sent the email for informational and business advisory purposes.

The mill argued that the attorney–client privilege protected both because the Communications Manager’s email sought legal advice on implications of the media statement. It conceded that the email contained no explicit request for legal advice, but the request was implicit as the subject-line designation confirms.  And, yes, the in-house lawyer’s “look good” response was legal advice, it argued.

The mill submitted the Communications Manager’s declaration in support, which you may read here, and she attested that the company was “immediately concerned with potential legal consequences and litigation” arising from the release event. She also claimed that she sought advice from in-house counsel “on the potential legal implications of the draft media statement.”  But was this enough?  And where was the in-house lawyer’s declaration?

Primary Purpose?

The court identified its job as determining whether the primary purpose of the email and draft statement was to secure legal advice but noted the difficulty in doing so when corporate internal communications involve in-house counsel. This difficulty is—

largely due to the fact that modern corporate counsel have become involved in all facets of the enterprises for which they work (and is) exacerbated by the advent of e-mail that has made it so convenient to copy counsel on every communication that might be seen as having some legal significance at some time, regardless of whether it is ripe for legal analysis.

The court dove into this difficulty and was bothered by the fact that the Communications Manager sent the email simultaneously to PR employees and in-house lawyers. According to the court, when an employee “simultaneously sends communications to both lawyers and non-lawyers, it usually cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes.”

Not Ripe

The court ruled that, because the Communications Manager sent the email to lawyers and non-lawyers, the company failed to prove that the email’s primary purpose was to secure legal advice. When sending a document for approval to lawyers and non-lawyers, then the primary purpose “was not to obtain legal assistance since the same was being sought from all.”

But the court raised another issue—the phenomenon that corporate employees copy in-house lawyers on emails before a legal issue is ripe for discussion.  The court noted that the email did not identify any “particular legal issue,” and the lawyer’s “looks good” response did not constitute providing legal advice. Rather—

The exchange is consistent with the general practice of copying legal counsel on all communications which may, at some time, be of legal significance.

POP Analysis

On the surface, it appears the Communications Manager adhered to best practices—she communicated with an in-house lawyer in a confidential manner and labeled the communication as “privileged.”  But courts view in-house lawyers’ communications with skepticism, especially when non-lawyers appear on the same email or email chain.

The ripeness issue is a somewhat new wrinkle in the “copying in-house counsel” dilemma. When a non-lawyer employee senses trouble on the horizon, she may start including in-house lawyers on internal emails even though no discernable legal issue exists.

What could the company have done differently?  Send a separate email to the in-house lawyer? In addition to the privilege designation in the subject line, include a specific request for legal advice in the email’s content? Should the in-house lawyer have submitted a declaration explaining the need for legal advice just four hours after the incident? For a few practice tips, view my article To CC or Not to CC, That is the In-House Lawyer Question, published in Today’s General Counsel.

The year 2021 brought a wide range of privilege issues for our consumption and edification. Several others published articles worthy of our time, as I reviewed in Practice Tips, Ideas, and Considerations: Privilege Articles from 2021.  As for case-law development, we saw a few fun things, like a major anniversary and Justice Barrett’s first opinion; a few concerning things, like imposition of sanctions for a lawyer’s misuse of privilege objections; and a few educational things, like whether to ever “cc” an in-house lawyer, how to engage a consultant, and differing privilege views of email attachments

So, let’s review an interesting privilege year.

Upjohn’s 40th Anniversary

The U.S. Supreme Court issued its decision in Upjohn Co. v. United States in January 1981—40 years ago—and it remains the leading opinion on the scope of the corporate attorney–client privilege. The case featured an American-made story of corporate success, lions of the Supreme Court Bar, and three (yes three) Chief Justices. The case has aged well and is worth a re-read for a host of reasons. You can read my summary in Happy 40th Anniversary, Upjohn!.

Justice Barrett’s First Opinion is a Privilege One!

Judge Amy Coney Barrett became an Associate Justice of the Supreme Court on October 20, 2020 and authored her first opinion on May 4, 2021. The case involved the deliberative-process privilege, and Justice Barrett ruled that this privilege protected a governmental agency’s non-final opinion even though that opinion caused an EPA rule change. This ruling solidifies the privilege for non-final agency decisions, and you may read more about it in First Opinion: Justice Barrett Upholds Deliberative Process Privilege for Agency’s Draft—But Effectively Final—Decision.

Privileges in Insurer–Insured Disputes

Application of the attorney–client privilege in the insurance-claims world remains inconsistent and tricky.  In 2021, the NFL won a privilege dispute in a lawsuit with its insurers over coverage for former players’ CTE claims.  The case involved cooperation clauses and the common-interest doctrine, and you may read about it in Protecting the Shield: NFL Wins Privilege Dispute with Insurers over Defense of CTE Litigation.

Internal Investigations

The year 2021 once again brought privilege issues arising from a company’s internal investigations.  For example, in a trade-secrets case, Tesla successfully used the privilege to prevent its adversary from obtaining notes and interview summaries from its internal investigators. But later, Tesla unsuccessfully sought to pierce the privilege of its adversary’s internal investigation. Lots of lessons here, as you can read about in A Tale of Two Tesla Investigation-Privilege Decisions.

Facebook, too, dealt with privileges and internal investigations.  Facebook appeared to take all the right steps to protect its internal investigation, but the court nevertheless allowed the Massachusetts Attorney General to “borrow” the investigation for a criminal investigation, as discussed in Authorized Piggybacking: Mass.’s Top Court Allows AG a Partial Review of Facebook’s Internal Investigation.

And Sea Ray thought it had protected its internal investigation, but ultimately lost all protections for the reasons described in Capsized! Sea Ray Wins—Then Loses—Work Product Protection Over Investigator’s Report.

In-House Lawyers

As always, courts saw challenges to privilege assertions from in-house counsel.  One court answered an interesting question on whether the privilege applies to an in-house lawyer’s advice found in business documents, as you can read about in In-House Lawyer Quandary: Business Advice or Implementation of Legal Advice as Part of a Business Decision?.

Does it trouble you in-house lawyers when a business type copy you on email?  How does the privilege apply, if at all? In my article, To CC, or Not to CC, That is the In-House Privilege Question, published in Today’s General Counsel, I explore how courts address the legal-advice component of the privilege in these situations.

And just because an in-house lawyer asks for something doesn’t always mean that it’s privileged.  Explore why one company lost privilege protection in just that situation in Heightened Scrutiny? Court Rejects Marathon’s Oil’s Privilege Claim for Spreadsheet Created at In-House Lawyer’s Request.

Privileges and Depositions

Are privilege objections during depositions increasing? Or are courts just addressing the issue more often?  Either way, 2021 saw a few important deposition-privilege issues.  For instance, in Sanctions Imposed for Lawyer’s “Repeated, Improper” Privilege Objections, you can learn how not to assert privilege objections.  One court rejected a lawyer’s instruction to his client not to answer a question for reasons explained in Inextricably Linked? Court Rejects Lawyer’s Instructions Not to Answer Deposition Question about Co-Client Communications.

In what some may say is a form-over-substance ruling, a court rejected Fitbit’s attempt to depose an attorney as can see in Misstep: Fitbit Thwarted from Deposing Attorney—But Not for Privilege Reasons.  And before you claim that the company CEO knows nothing other than privileged information received from the in-house legal department, read “All I know is What the GC Told Me!” Court Allows CEO’s deposition but With Some Privilege Protections.

Choice of Privilege Law

Try as we do, we cannot forget the importance of conflicts of privilege laws in determining whether a privilege ultimately protects certain communications from disclosure. You can see how this issue arises—and how it may play out for you in the future—in Deep Dish! Illinois Court Rejects New York Privilege Law in Interstate Subpoena Scuffle.

Consultants

Does the privilege cover a corporate lawyer’s communications with a third-party consultant? Well, it depends of course. One company failed to secure privilege protection through an inadequate engagement letter, as detailed in Court Rejects Privilege Protections for Bank’s Communications with Navigant Consulting.  Yet, a different court protected a lawyer’s communications with a consultant helping with an investigation for the reasons described in A Derivative Privilege: Court Protects Counsel’s Use of Consultant During Internal Investigation.  A compare-and-contrast here provides a few practice tips.

Privilege Protection for Email Attachments

Are attachments to privileged emails privileged? After you decipher that question, you may read about two federal courts that reach completely opposite conclusions on how to answer this question in Courts Duel over Privilege Protection for Email Attachments.  And from this point forward, you’ll think twice about clicking the “Attachment” button on those emails.

Blanket Privilege Objections

We see these decisions every year, so lawyers must learn that asserting blanket privilege objections comes with some risk of peril.  You will learn a few lessons by reading Blanket Privilege Objection with No Privilege Log Constitutes Waiver—and Bad Faith, Court Rules.

DOJ Filter Teams

Due to criminal investigations into news-attracting types like Michael Cohen and Rudy Guiliani, over the last couple of years the DOJ’s use of filter teams to make privilege decisions over seized documents has entered the mainstream news. While less high-profile, the 11th Circuit approved a filter-team privilege protocol that could serve as a model for other corporations that see authorities raid their lawyers’ offices. Read about it in “Not Even Close”! 11th Circuit Approves DOJ Filter-Team Protocol for Review of In-House Lawyer’s Emails.

So, there it is—important highlights on evidentiary privileges that arose in 2021.  Thanks for joining me this year, and all the best in 2022.

Can’t get enough commentary on evidentiary privileges?  I am here for you. As you can surmise, I suppose, I read a fair number of judicial decisions applying various evidentiary privileges—but also commentary of professors and other lawyers discussing privilege-related issues.  I maintain a resources page identifying other go-to privilege treatises, articles, and databases, but for those curious for a deeper dive into some privilege issues, outlined below is my list of the top privilege articles published in 2021. Enjoy.

  • Todd W. Smith’s article, “Are You My Lawyer?”: (More) Lessons from Theranos: Attorney–Client Privilege Considerations in the Corporate Context, identifies an all-too-common problem: whether the corporate lawyer represents the entity or the executive. The article is full of good practice tips, and you may access it here. 63 Orange County Lawyer 50 (Oct. 2021).
  • Nathan M. Crystal authored two short but thought-provoking articles for the South Carolina Lawyer magazine. In Client Threats and the Attorney–Client Privilege, accessible here, Crystal provides recommendations for handling privilege and ethical issues when your client threatens physical harm to judges and others. 32 South Carolina Lawyer 15 (May 2021).  And in Inadvertent Production and Waiver of Privilege/Work Product Protection, available here, Crystal discusses a California case on inadvertent production of privileged material and offers lessons for us all. 33 South Carolina Lawyer 16 (July 2021).
  • This is scary. Are your communications using Alexa, Siri, or any similar “assistants” protected? Lauren Chlouber Howell explores the privacy and privilege issues related to communicating with or through these devices. Alexa Hears with her Little Ears—But Does She Have the Privilege?, 52 St. Mary’s Law Journal 837 (2021).  You may access it here.
  • Ever wonder what happens to a company’s privileged communications after it sells its assets to another entity? Robert S. Reider and Jacob R. Haskins explain the situation in Chancery Court Finds Merger Agreement Preserved Sellers’ Privilege Over Pre-Merger Attorney–Client Communications, 73 Vand. L. Rev. En Banc 11 (2020), available here.
  • It is an issue I have discussed before: does the attorney–client privilege apply to communications between a company’s lawyer and its former employees? Douglas R. Richmond expands on the topic in The Attorney–Client Privilege and Former Employees, 70 Cath. U. L. Rev. 39 (2021), and you should read it here.
  • In Recent Case Law Developments Involving the Crime–Fraud Exception: The Attorney–Client Privilege, Filter Team Protocols, and Other Privileges, Gretchen C.F. Shappert and Christopher J. Costantini provide five hypothetical situations and discuss how the crime–fraud exception applies in theory and in practice. They also discuss DOJ filter teams and the use of a court-appointed special master to make those privilege determinations. 69 Dep’t of Justice Journal of Federal Law and Practice 289 (May 2021).  Read it here.
  • A few years ago, I wrote about the Federal Circuit’s recognition of a patent–agent privilege.  In Let’s All Get on the Same Page: Equating Patent–Agent Privilege to Attorney–Client Privilege, available here, Alexandra K. Kim identifies this federal decision, laments that the majority of state courts have not addressed the issue, and argues that the patent–agent privilege should be equivalent to the attorney–client privilege “in all venues.” 27 Richmond Journal of Law & Technology 1 (2020).
  • While I hoped that articles with the phrase “in age of Covid-19” in the title would be moot by now, they aren’t. Melanie L. Cyganowski, Erik B Weinick, and Aisha Khan published a helpful article discussing the increase in virtual communications, the concomitant increase in cyberspace intrusions, and the need for privilege protections when hiring data-breach consultants.  Protecting Privilege in Cyberspace: The Age of Covid-19 and Beyond, 93 N.Y. State Bar Journal 44 (Mar/Apr 2021). Read it here.
  • You may recall that Judge Iian Johnston of the Northern District of Illinois issued a well-written and thorough opinion regarding whether plaintiffs waive the psychotherapist–patient privilege by asserting a “garden-variety” emotional-distress claim. You may read my blog post about it here.  Now, Armen H. Merjian explores the topic further in Emotional Distress and the Psychotherapist–Patient Privilege: Establishing a Certain and Principled Implied-Waiver Rule for Civil Rights Litigants, 12 UIC Irvine L. Rev. 221 (2021), which you may read here.
  • The self-critical analysis privilege, which courts recognize sporadically at best, was the subject of two separate but equally good articles.  In Careful Consideration for Applying the Self-Critical Analysis Privilege in the Review of Internal Process Improvement, available here, Jessica Brennan, Mike Zogby, and Tiffany Riffer trace the privilege’s evolution, provide practice tips, and provide a list of each state’s peer-review privileges. 16 In-House Defense Quarterly 15 (Summer 2021).  And in Let Them Learn: Recognizing and Codifying A Design-Build Self-Critical Analysis Privilege in Texas, available here, Christian Martinez proposes a statute enacting a self-critical analysis privilege for Texas’s design-build industry. 7 Tex. A&M J. Prop. L. 230 (2021).
  • What happens to the privilege when your client dies? Well, lawyers John M. Palmeri and Greg S. Hearing discuss a Colorado case answering this question from a privilege and ethical standpoint.  ’Til Death Do Us Part: The Attorney–Client Privilege and the Duty of Confidentiality after a Client’s Death, 50 Colorado Lawyer 15 (Mar. 2021).  Read it here.
  • Evidentiary privileges related to communications with a guardian ad litem receive too little attention.  Jacqueline M. Valdespino and Laura W. Morgan change that in Guardians Ad Litem: Confidentiality and Privilege, where they focus on confidentiality and privilege issues that may arise between a guardian ad litem and the parties in a custody dispute. 33 J. Am. Acad. Matrim. Law. 517 (2021). Read it here.
  • A privilege issue that receives scant attention but could have tremendous ramifications in matters like sexual-abuse cases is the clergy-penitent privilege. James Grant Semonin explores this privilege as it relates to states’ mandatory reporting statutes, and urges a national and international uniform solution that protects the privilege while accounting for the free exercise of religion. “For the Forgiveness of Sins”: A Comparative Constitutional Analysis and Defense of the Clergy–Penitent Privilege in the United States and Australia, 47 J. Legis. 156 (2021), available here.
  • Did you know that New Mexico abolished its spousal communications privilege? Well, it did because the privilege’s purpose—to protect marital harmony—apparently no longer applies in a so-called modern society.  Emily Crawford Sheffield provides a nice history of the privilege and argues that courts should maintain the privilege even in light of the “current views of marriage.” Rationalizing a Spousal Confidential Communications Privilege Fit for the Twenty-First Century, 74 Vand. L. Rev. En Banc 187 (2021), available here.
  • The Sixth Amendment’s Confrontation Clause provides criminal defendants the right to cross-examine an adverse witness. But what yields when that witness refuses to answer a question on attorney–client privilege grounds? Jackson Teague explores this conflict and offers a solution in Two Rights Collide: Determining When Attorney–Client Privilege Should Yield to a Defendant’s Right to Compulsory Process or Confrontation, 58 Am. Crim. L. Rev. 487 (2021).  Available here.
  • Some states recognize a nurse–patient privilege. But should they? Or should other states join? Michael D. Moberly explores this privilege in Can a Nightingale Sing? Assessing the Need for a Nurse–Patient Privilege, 17 J. Health & Biomedical L. 1 (2020). Read it here.

And there you have it—a few interesting privilege-related articles published in 2021.  What scholarship will 2022 bring us?