It would be easy to think that conducting a privilege review consists simply of reading over documents to look for a lawyer’s name as the sender or recipient. As with most issues involving the privilege, life is not so simple.
In large corporations, an outside or inside lawyer’s advice might be quoted in a memorandum from one non-lawyer corporate official to another. Such communications might also paraphrase the lawyer’s advice without naming the lawyer or even identifying the advice as coming from the lawyer. Similarly, communications from corporate employees sending factual information to the lawyer for purposes of receiving legal advice (which also normally deserve protection) might not reveal on their face that the lawyer has requested the information.
The court in United States Fidelity & Guar. Co. v. Braspetro Oil Servs. Co., 97 Civ. 6124 (JGK (THK), 98 Civ. 3099 (JGK)(THK), 2000 U.S. Dist. LEXIS 7939, at *49-50 (S.D.N.Y. June 7, 2000) recognized the complex nature of the attorney-client privilege. After an in camera review, the court found that a party had properly withheld on privilege grounds documents that were not written by or to lawyers. The court noted that ” [m]ost of the documents involve legal opinions issued by personnel in the corporate legal department, or responses to inquiries from individuals in the corporate legal department, which were sent to corporate personnel. The inquiries and responses relate to legal advice and services that were being rendered.”
Corporate personnel would do later document reviewers a large favor by including on the face of their documents any involvement by a lawyer (either giving advice or obtaining information). Even without such indicia, however, documents generated within a corporation may deserve privilege protection based on their substance and not on any names listed in the “to” and “from” lines.