We’ve heard this mantra from many judges: simply copying an in-house lawyer on an email does not render the email privileged. Need proof? Read these cases: EEOC v. BDO USA, LLP, 2017 WL 5494237 (CA5 Nov. 16, 2017); Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174 FRD 609, 633 (M.D. Pa. 1997); United States v. Chevron Texaco Corp., 241 F. Supp. 2d 1065, 1076 (N.D. Cal. 2002).
But one case reveals that this truism is not always, well, true. In Morgan v. Butler, 85 N.E.3d 1188 (Ohio Ct. App. 2017), available here, the court ruled that the attorney–client privilege protected three emails sent from an Ohio EPA supervisor to non-lawyer EPA employees with copies to EPA in-house lawyers. And the story of how the EPA achieved this privilege victory is instructive for the rest of us. More…
The USDC for the ED Louisiana issued a short but instructive privilege opinion for in-house lawyers. The court found the in-house counsel privilege “more difficult” to apply, ruled that an executive’s cc’ing in-house counsel is insufficient, imposed a “primary purpose” standard, and generally rejected the privilege because there was “no indication” that the employee emailing the in-house lawyer was seeking legal advice. Texas Brine Co. v. Dow Chemical Co., 2017 WL 5625812 (ED La. Nov. 21, 2017). You may read the opinion here.
Dow Chemical challenged the privileged nature of several emails involving Texas Brine’s in-house lawyers, and the court recognized the difficulty in assessing in-house lawyers’ privilege assertions. The court found it “more difficult” to define the privilege’s scope because in-house counsel “serve multiple roles,” including non-legal ones, and have an “increased level of participation in the day-to-day operations of the corporation.”
The Primary Purpose or A Primary Purpose?
Because of a perceived increase in corporate counsel’s business roles, the court required the Texas Brine lawyers to prove that “the primary purpose” of the emails was to secure legal advice. The court explained this “test” as whether the in-house lawyer participated in the communication “primarily for the purpose of rendering legal advice.” Merely identifying a legal issue in the email is insufficient—the “lawyer’s role as a lawyer must be primary to her participation.” More…
In the continuing fallout from the reprehensible Jerry Sandusky scandal, a PA appellate court rejected Penn State’s attorney–client privilege claim over documents that Louis Freeh’s law firm generated during its internal investigation. The reason?
The court found that there was no attorney–client relationship between Penn State and Freeh’s law firm, and, without this relationship, the privilege did not cover communications between Penn State Board of Trustees and Freeh’s firm. The court made this finding even though the Board Chair signed the engagement letter and the Board paid Freeh’s fees. Estate of Paterno v. NCAA, 168 A.3d 187 (Pa. Super. Ct. 2017). You may read the decision here.
The Forgotten Privilege Element
Regular readers of this blog know that the party asserting the attorney–client privilege must show three primary elements: a (1) confidential (2) communication made for (3) legal-advice purposes. We too often, though, presume—and forget about—a threshold element: a lawyer–client relationship. More…