Lawyers should remind their clients that copying a lawyer on an email does not automatically render the email privileged. But the story doesn't end there.
In Dejewski v. National Beverage Corp., the court recited the familiar lesson that "[a]n email is not deemed to be privileged if an in-house attorney: (1) is a mere recipient of that email." Case No. 19-cv-14532-ES-ESK, 2021 U.S. Dist. LEXIS 6083, at *2 (D.N.J. Jan. 12, 2021). The court then explained the obvious rationale – otherwise an employee could "simply copy an attorney on all company-generated emails to protect them from discovery." Id. But the court had included a significant second condition to this rejection of privilege protection: "if an in-house attorney . . . (2) did not actively participate in providing legal advice as part of that email." Id. Just a day before, the court in Belcastro v. United Airlines, Inc., implicitly applied this approach in protecting emails on which a United Airline employee copied an in-house lawyer – noting that the lawyer was copied "in order to seek [her] legal advice, which it seems she provided immediately following the challenged emails, or at least in the same chain on the same day." Case No. 17 C 1682, 2021 U.S. Dist. LEXIS 4751, at *9 (N.D. Ill. Jan. 11, 2021) (emphasis added). Thus, the privilege applied "because [United's in-house lawyer] is copied on those emails and they are part of a broader chain in which legal advice was solicited and provided." Id. (emphasis added).
In other words, lawyers who respond with a privileged return email can increase the odds of the protection covering their dialogue. They may not be able to respond to every email on which they are copied – but responding to emails that catch their attention as potentially troublesome can increase the chances of successfully asserting privilege protection.