Internal-Investigation Emails between Non-Attorney Employees–Privileged? 2

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. More…

Court Says Company Has “Duty” to Provide Privilege Log in Response to Gov’t Subpoena. Is Waiver Next?

FRCP 26(b)(5)(A) requires litigation parties to submit a privilege log describing privilege-related objections to discovery requests.  And FRCP 45(e)(2)(A) imposes the same privilege-log requirement on third-parties responding to subpoenas.  But what are the privilege-log requirements for entities responding to an administrative agency’s subpoena?  Will the failure to produce a privilege log at the agency level result in privilege waiver?

The federal court in Memphis has ruled that an employer must produce a privilege log when withholding documents in response to a NLRB subpoena.  This requirement arises even though the court acknowledged that only Article III judges, not ALJs, have authority to rule on privilege claims.  NLRB v. NPC Int’l, Inc., 2017 WL 634713 (W.D. Tenn. Feb. 16, 2017).  You may read the decision here. More…

Privilege-Log Designations: Categorical or Document-by-Document?

Courts are increasingly ruling on the adequacy of parties’ privilege-log designations. As discussed in a prior post, Roger Clemens learned the hard way that failure to submit a privilege log results in privilege waiver. My article, Ignoring Privilege Log Obligations May Prove Costly, also details issues arising from inadequate privilege-log designations.

But does an adequate privilege log necessarily require a party to list each document? Or, may parties identify privileged documents by categories or topics? And does a party have to identifypointing_at_chalkboard_text_10562 documents where the identification will itself disclose privileged information? The Court’s decision in Manufacturers Collection Co. v. Precision Airmotive, LLC, 2014 WL 2558888 (N.D. Tex. June 6, 2014), provides helpful guidance on these topics. You may access the opinion here.

FRCP 26(b)(5) requires a privilege-invoking party to expressly make the privilege claim, and “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” In Manufacturers Collection, the third-party plaintiff argued that the third-party defendant violated this rule by simply identifying a category of documents as privileged.

The Court, however, rejected the argument that FRCP 26(b)(5) always requires a document-by-document privilege designation. Citing SEC v. Thrasher, 1996 WL 125661 (SDNY Mar. 20, 1996) and heeding the Advisory Committee’s qualification that “courts retain some discretion to permit less detailed disclosure in appropriate cases,” the Court described two circumstances where a document-by-document approach was inappropriate:

  1. Where a detailed disclosure would, in effect, reveal the putatively privileged information; and

  2. Where a document-by-document listing would be unduly burdensome and the additional information to be gleaned from a more detailed log would be of no material benefit to the discovering party in assessing the privilege claim.

Under these standards, the Court permitted the third-party defendant to identify withheld documents by category. But this approach did not relieve the party of identifying all of the senders and recipients of communications (even if not by a particular document reference) so that the objecting party could determine whether privilege waiver existed.

Nor did the categorical approach permit the party to identify general categories, as the Court required it to breakdown the categories into subcategories, such as date range and type of authors and recipients, and break out each type of claimed protection, such as the attorney–client privilege and the work-product doctrine.

Even with the subcategories admonition, the Manufacturers Collection decision serves as good authority for those parties faced with crafting a privilege log for voluminous information and where providing a document-by-document listing would itself reveal privileged information. Practitioners should keep this decision handy.