Courts analyzing privilege assertions for email threads often look for some
indicia of that protection on the face of those emails.
In Anderson v. Trustees of Dartmouth College, Case No.
19-cv-109-SM, 2020 U.S. LEXIS 153785 (D.N.H. Aug. 25, 2020), an expelled
student sued Dartmouth for applying a faulty disciplinary process.
Dartmouth withheld approximately 5,000 pages of documents, many of which
were email threads. The court rejected most of Dartmouth’s privilege
claims. One group of withheld documents constituted emails between
non-lawyer Dartmouth employees. Although one email “discusses the relevant
New Hampshire statute, . . . that fact does not render the email subject to
an attorney-client privilege. And, while in-house counsel . . . is copied
on the email, neither [of the Dartmouth employees] requests legal advice,
nor does [Dartmouth’s in-house lawyer] offer any.” Id. at *6.
Another batch of withheld emails “invite[d] feedback or comment on
potential draft email responses to the plaintiff” – but “[t]hose requests
were not made specifically to counsel, [and] instead generally requested
responses from all email recipients.” Id. at *7-8. The court also
rejected Dartmouth’s argument that its employees sent Dartmouth’s lawyer
documents seeking legal advice – bluntly holding that “[o]f course, merely
saying so does not make the documents privileged.” Id. at *9. The
court also noted that “Dartmouth fail[ed] to provide any sort of affidavit
or declaration from an individual with personal knowledge of that practice,
or any other evidence that might establish that practice.” Id. at
Lawyers should educate their clients about the importance of including on
the face of their emails indicia of those emails’ privileged nature
(normally, that the clients seek the lawyers’ legal advice). And of course
lawyers must support privilege claims with whatever necessary affidavits
the pertinent court would expect.