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E-mails and Privilege for In-House Counsel
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.
E-mails, 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 e-mails 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 e-mail or forward an e-mail to internal and external colleagues without restraint.
Unsurprisingly, courts face an increasing number of discovery-privilege disputes that involve e-mail communications. E-mail privilege disputes do not necessarily arise because an e-mail is involved ' indeed, an e-mail 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 e-mail. This article briefly reviews five 2013(ish) cases involving privilege issues that arose in the e-mail context, and offers take-aways for in-house counsel's use in 2014 and beyond.
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