Corporations are entitled to assert the attorney-client privilege just like anyone else, but the unique nature of corporations sometimes means that an additional analysis must precede any privilege assertion. Some courts take an extremely narrow view of the privilege as it applies in the corporate setting.
For instance, in In re Central Gulf Lines, No. 97-3829 c/w 99-1888 SECTION: “E” (4), 2000 U.S. Dist. LEXIS 18019, at *6 (E.D. La. Dec. 4, 2000), the court explained that “documents prepared for review by both legal and nonlegal staff are not privileged, because the documents cannot be said to have been made for the primary purpose of seeking legal advice.” Not all courts are this restrictive, but this decision highlights the tenuous nature of the privilege in the corporate context when it is assessed by courts taking a narrow view.
Lawyers advising corporations should remember this type of narrow approach that some courts take, and help their clients structure procedures that will help to later demonstrate (if necessary) that documents were prepared for the “primary purpose” of seeking legal advice. For instance, it may be appropriate to sequence the review of documents so that some drafts receive only a lawyer’s review specifically for legal reasons.