The attorney-client privilege protects clients'
communication of facts to their lawyers and requests for
legal advice about those facts. Not surprisingly, busy
courts dealing with the mounting volume of withheld
documents often requiring in camera review
frequently look for explicit requests for legal advice on
the face of such withheld documents.
In Curtis v. Progressive Northern Insurance Co.,
Case No. CIV-17-1076-PRW, 2019 U.S. Dist. LEXIS 73461 (W.D.
Okla. May 1, 2019), the court reviewed in camera several documents defendant had
withheld as privileged. Although acknowledging that
defendant Progressive's in-house lawyer received copies of
several emails, the court rejected defendant's privilege
claim – noting that "[n]either email evinces a request for
legal advice." Id. at *7. The court reached a
similar conclusion about other emails, noting that the
emails "again do not seek legal advice or strategy" and
that "the decisions mentioned in the emails reflect those
made by non-legal Progressive employees and do not
reference any legal advice or strategy provided." Id. at *10.
This understandable but frequently frustrating judicial
approach should prompt corporations' lawyers to remind
their clients to explicitly ask for legal advice on the
face of communications to the corporations' lawyers when
that is their goal.