Because privilege logs necessarily contain logistical but not content-based information about withheld documents, adversaries sometimes challenge privilege protection because no lawyer sent or received a withheld document. Every court recognizes that the privilege can protect one employee’s forwarding of a lawyer’s advice to another employee who needs it. And there is another less common but equally protected type of employee-to-employee communication.
In Corkrean v. Drake University, No. 4:21-cv-00336-RGE-SHL, 2022 U.S. Dist. LEXIS 10156 (S.D. Iowa Jan. 3, 2022), the court noted that “[c]ourts overwhelmingly recognize that a communication is not per se unprivileged simply because it is solely between non-attorneys.” Id. at *7. Focusing on the less common type of protected employee-to-employee communications, the court explained that “the attorney-client privilege sometimes will protect communications between employees about imminent future discussions with an attorney.” Id. at *9. The court then offered useful guidance for what it called the “gray area” in such communications. For instance, “[a]n email that makes a passing reference to the possibility of speaking with an attorney is less likely to be privileged than one that prepares for an already-scheduled meeting with an attorney.” Id. at *9-10. And so “a long email chain that mentions nothing about an attorney until the very last message is unlikely to be privileged except as to the last message.” Id. at *10.
Corporations and their lawyers should be on the lookout for all the ways the privilege can justify withholding employee-to-employee emails.