Emails, In-House Counsel, and Privilege–A Tricky Mix 2

A recent decision from a Florida federal court, applying Florida privilege law, provides excellent guidance for in-house counsel seeking to maintain the attorney-client privilege over email exhanges with company employees.  In Affordable Bio Feedstock, Inc. v. Darling Int’l, Inc., 2012 WL 5845007 (M.D. Fla. Nov. 19, 2012), the court outlined the criteria that an in-house lawyer must show to obtain coverage of the corporate attorney-client privilege:Legal Advice Computer Key In Blue Showing Attorney Guidance

  1. the communication would not have been made but for the contemplation of legal services;
  2. the employee making the communication did so at the direction of his or her corporate superior;
  3. the superior made the request of the employee as part of the corporation’s effort to secure legal advice or services;
  4. the content of the communication relates to the legal services being rendered, and the subject matter of the communication is within the scope of the employee’s duties;
  5. the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.

These elements, adopted in Southern Bell Telephone & Telegraph Co. v. Deason, 632 So. 2d 1377 (Fla. 1994) and which echo the criteria listed in Upjohn Co. v. United States, 449 U.S. 383 (1981), form the so-called subject-matter test for the corporate attorney-client privilege.

Emails and Maxims

The court correctly emphasized that companies’ organizational structure of large legal departments with broad responsibilities imposes adverse consequences for the in-house lawyer seeking cover of the corporate attorney-client privilege.  And these consequences appear more dire when corporate email is involved, with the court stating that “the advent of email has added to the difficulty of determining the purposes and intent of communications that involve corporate legal counsel.”  The court offered a few tips regarding email communications:

  • When a communication is simultaneously emailed to a lawyer and non-lawyer, the corporation cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes;
  • When email with an attachment is sent to lawyers and non-lawyers in the corporation, neither the email nor the attachment is privileged;
  • When an email is sent to a lawyer and non-lawyers in the corporation are copied, it raises a question as to whether the communication’s primary purpose was for legal advice or assistance.

Gracious Ruling

The court found that the in-house lawyer failed to adequately describe the questionable emails to permit the court to analyze them under Florida’s subject-matter test.  Nonetheless, the court reviewed the emails in camera and sustained most of the privilege objections.  The court did find that two emails sent by a non-lawyer to another non-lawyer but copied to the in-house counsel were not privileged.  But several other emails involving the in-house lawyer were privileged, a generous ruling given the lack of evidentiary proof of the subject-matter test criteria.

In sum, the court’s opinion provides excellence guidance, including specific examples, regarding in-house counsel, corporate emails, and maintaining the attorney-client privilege.

Implied Waiver Expanded to Communications with Third-Party Attorneys

In an attorney malpractice case, a Georgia federal court, predicting Georgia law, expanded the implied waiver doctrine to the client’s communications with third-party attorneys regarding the same subject matter.  Christenbury v. Locke Lord Bissell & Liddell, LLP, 285 F.R.D. 675 (N.D. Ga. 2012).  The implied waiver doctrine, also known as “at issue” waiver or the offensive use doctrine, provides that a client waives the attorney-client privilege when he places privileged information atSlide2 issue–such as when he sues his attorney for malpractice.  The novel question, however, is whether this implied waiver extends to the client’s communications to other (third-party) attorneys who advised the client on the same subject matter.  In this matter of first impression under Georgia law, and where there is a split of authority in other jurisdictions, the court held that implied waiver extends to communications with third-party attorneys.

Claims and Issues

The client in Christenbury sought legal advice from a Texas attorney and an Atlanta attorney regarding tax implications of an investment strategy.  The client later brought a professional negligence suit against the Atlanta attorneys in federal court under diversity jurisdiction.  The Atlanta attorneys alleged comparative negligence against the Texas attorney and moved to compel the client’s communications with the Texas attorney regarding the investment strategy.  The question of first impression before the court was–

Whether a defendant-attorney can discover otherwise privileged communications between a client and other retained counsel as a result of asserting comparative or contributory negligence and failure to mitigate damages defenses.

The Ruling

The court reviewed extrajurisdictional cases extending the implied waiver doctrine to third-party attorneys.  See Pappas v. Holloway, 787 P.2d 30 (Wash. 1990); Rutgard v. Haynes, 185 F.R.D. 596 (S.D. Cal. 1999); Simmons Foods v. Willis, 191 F.R.D. 625 (D. Kan. 2000). And it reviewed a Florida case rejecting extension of the waiver.  Coates v. Averman, Senterfitt & Eidson, P.A., 940 So. 2d 504 (Fla. Dist. Ct. App. 2006).  The court found the Florida decision unpersuasive because Florida disfavors privilege waiver while Georgia narrowly interprets evidentiary privileges. And, with little support, the court stated “federal law has largely found implied waiver” in these situations and therefore predicted that Georgia law would extend the implied waiver doctrine to communications with third-party attorneys.

PoP Analysis

The court’s prediction of Georgia law on the scope of the implied waiver doctrine may prove correct, but one may question the court’s analysis in making this prediction. First, as noted in an earlier PoP Post, the court did not perform a proper conflict of privilege law analysis to determine whether Georgia’s privilege law, or another state’s (Texas) privilege law should apply.  And here, the court applied Georgia law in determining whether a North Carolina client had waived his attorney-client privilege covering communications with a Texas attorney.

Second, the court relied upon two federal-court cases (Rutgard and Simmons Foods) for the authoritative proposition that “federal law has largely found waiver.”  But both of these federal courts had diversity jurisdiction and applied state privilege law, not federal.  And third, the court’s statement that Georgia courts rely upon federal courts’ interpretation of the Federal Rules of Civil Procedure is inapposite.  The federal civil procedure rules do not dictate evidentiary privileges; rather federal common law guides privilege analysis under Federal Rule of Evidence 501.  Evidentiary privileges are substantive, not procedural; and courts should apply substantive privilege law rule interpretations.

The proper analysis should include an analysis of Georgia’s attorney-client privilege and its waiver principles. Perhaps the result would be the same–an extension of the implied waiver doctrine.  But until the proper analysis is completed, the Christenbury decision remains questionable authority.

Privileges, Clawbacks, and Inadvertent Disclosures–Is Technology the Solution?

E-discovery requirements raise at least two significant concerns for in-house counsel: (1) controlling costs associated with collection and production; and (2) inadvertently producing privileged information.   And these two concerns force in-housecatch22 lawyers into a Catch-22 situation: a complete pre-production privilege review constitutes a significant cost item; yet, producing documents with limited to no pre-production privilege review risks inadvertent disclosures and privilege waiver, which could result in adverse ethical and legal-strategy consequences.

In my article, Privileges, Clawbacks, and Inadvertent Disclosures–Is Technology the Solution?, published in the January 2013 issue of The Corporate Counselor, I argue that Federal Rule of Evidence 502 and clawback agreements have proved inadequate to control costs and reduce privilege waiver risks.  Instead, in-house lawyers should consider technology assisted review (TAR) software as a tool for handling these competing concerns.  TAR software, also known as computer assisted review or predictive coding, uses sophisticated algorithms to review electronically stored information and return only highly relevant documents.  Use of the TAR software was recently approved by Magistrate Judge Andrew Peck in Da Silva Moore v. Publicis Groupe, 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012), and this decision will likely persuade other courts to approve its use in e-discovery processes.

The article discusses FRE 502, clawback agreements, courts’ treatment of inadvertent disclosures, and how TAR software provides an alternative, and better, solution.  You may access the article at this link.  Thanks to ALM and The Corporate Counselor for permitting use of the article in this blog post.