Given privilege logs’ listings of withheld documents’ authors and recipients, it should come as no surprise that adversaries frequently challenge privilege protection for documents not sent by or to companies’ lawyers. In fact, it is one of the few privilege challenges adversaries can mount based purely on the log. But such communications can deserve privilege protection if: (1) the company’s employees were formulating a question or gathering facts for later transmission to the corporation’s lawyer; (2) the employees were contemporaneously memorializing communications with the company’s lawyer; or (3) the employees were relaying the company’s lawyers’ advice to other employees who needed it.
In Rauback v. City of Savannah, No. CV418-167, 2019 U.S. Dist. LEXIS 134025, at *9 (S.D. Ga. Aug. 8, 2019), the court protected employee-to-employee communications after confirming in an in camera review that “the emails appear to be a conversation between a representatives of a corporate client conveying relevant legal information advice from counsel.” About two weeks later, in McCall v. P&G, Case No. 1:17-cv-406, 2019 U.S. Dist. LEXIS 143161, at *10 (S.D. Ohio Aug. 22, 2019), the court similarly found after its in camera review that “all [withheld documents] are covered by the attorney-client privilege, notwithstanding the fact that none lists an attorney as a sender, recipient, or copied party.” The court explained that in some of the documents “P&G’s employees gather information . . . at the request of P&G’s attorneys,” and in other documents P&G’s employees “convey legal updates from P&G’s attorneys, implement legal advice from P&G’s attorneys and/or set up meetings with P&G’s attorneys/agents about the case.” Id.
Although these and similar cases offer hope for successfully asserting privilege protection for employee-to-employee communications, lawyers should train those employees to articulate those purposes on the face of such documents.