Not So Fast, My Friend. Privilege May Apply When CC’ing In-House Lawyer Reply

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…