by Amber D. Reece
Associates are often charged with reviewing documents for production. When representing a corporate client, those documents will contain hundreds, if not thousands, of emails between the company’s employees, including communications with in-house counsel. We all know the straightforward principles that the attorney-client privilege protects communications between lawyers and their clients and that the privilege belongs to the client. But for a corporate client, determining whether a communication is privileged is far more complicated: The privilege belongs to the corporation and protects communications between the corporation’s employees and corporate legal counsel on matters within the scope of their corporate responsibilities, as well as communications between corporate employees in which prior advice received is being transmitted to those who have a need to know that advice in the scope of their corporate responsibilities. Determining whether communications with in-house counsel should be withheld can get even more complicated when a company’s in-house lawyer is asked for advice on business, technical, or public-relations issues, or is responsible for making business decisions beyond the role of legal counsel.
Whether an email is confidential depends on identifying the parties to the communication, the subject matter of the communication, and the purpose of the communication, and may vary widely depending on whether federal, state, or international laws relating to attorney-client privilege apply. Typically, when information is collected to serve a dual purpose—i.e., one for transmittal to an attorney in the course of professional employment and one not related to that purpose—the question is which of the two purposes “predominates.” However, at least one court has concluded that the Texas rules of evidence do not require that the primary purpose of the communication be to facilitate the rendition of legal services—only that the communication be made to facilitate the rendition of legal services.
Another complicating issue can be the relationships between various corporate entities working on the same problem. The attorney-client privilege will generally cover communications between related entities so long as all the other requirements of the privilege are satisfied, but some jurisdictions have their own tests for evaluating the applicability of the privilege. For example, the Third Circuit held “the community-of-interest privilege allows attorneys representing different clients with similar legal interests to share information without having to disclose it to others”. And that is only the beginning…
Keeping all this in mind, there are important questions you should address at the outset of a document-review project to determine whether you should mark an email involving in-house counsel as attorney-client privileged.
First, review the pleadings and familiarize yourself with the dispute, then evaluate what law controls with respect to evidentiary issues and the parameters of the attorney-client privilege under that law.
Second, make a list of key players within the organization and their roles. As you review documents, this list may expand or change, but having some initial idea of each person’s function is crucial. If you come across names that you cannot identify, ask! The inclusion of anyone outside the organization or even non-essential employees may waive the privilege. Then, during the review, be sure to look at the entire thread and ask why each separate communication is being sent and why each recipient is included. Often a privileged communication will exist in a string of emails that continues to get circulated as more and more individuals are added to the conversation. You will need to evaluate whether the privilege was waived at any point during the discussion and whether you can withhold only the privileged sections.
Finally, prepare and timely produce a privilege log that complies with the forum’s procedural and evidentiary rules (including the local rules). Working through these issues first and reviewing communications carefully from the beginning will help you work more efficiently and accurately.
Amber D. Reece is an associate at Figari + Davenport, LLP. She can be reached at firstname.lastname@example.org.