Courts employ a heightened standard when companies attempt to shield their employee–in-house lawyer communications under the attorney–client privilege. The dominant reason for this scrutiny is the recognition that employees often involve in-house counsel in business and legal-related conversations, forcing courts to scrutinize whether the putatively privileged communication pertained to legal or business advice.
Emails, which serve as the primary (and too often exclusive) means of communications, exacerbate the business–legal dichotomy because they offer employees an easy avenue to “run a (business) issue by” the in-house lawyer. But emails also increase the chances of privilege waiver due to the lawyer’s lack of, or loss of, control. Employees may easily copy or blind copy non-lawyers with an email or forward an email to internal and external colleagues without restraint.
Unsurprisingly, courts face an increasing number of discovery-privilege disputes that involve email communications. Email privilege disputes do not necessarily arise because an email is involved—indeed, an email is, at bottom, simply a form of communication. But privilege issues that otherwise may not ripen for dispute resolution arise because the communication occurred via email. In my latest article, Emails and Privilege for In-House Counsel, published in ALM’s
The Corporate Counselor law journal newsletter, I briefly review five 2013(ish) cases involving privilege issues that arose in the email context, and offer take-aways for in-house counsel’s use in 2014 and beyond.
You may access the article here. I hope you enjoy the read. And for other posts pertaining to emails and the attorney-client privilege, see my posts about corporate executives’personal emails on company networks, dual-purpose emails, and why emails, privilege, and in-house lawyers present a tricky mix.
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:
- the communication would not have been made but for the contemplation of legal services;
- the employee making the communication did so at the direction of his or her corporate superior;
- the superior made the request of the employee as part of the corporation’s effort to secure legal advice or services;
- 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;
- 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.
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.