The so-called “crime-fraud exception” to the attorney-client privilege has generated two main debates: (1) what type of wrongdoing triggers the “exception;” and (2) what connection must there be between the communication and the wrongdoing?
One court addressed the first issue. In Rambus, Inc. v Infineon Technologies AG, 220 F.R.D. 274, 282, 281 (E.D. Va. 2004), the court examined the case law defining the type of wrongdoing that triggers the exception, and found that the crime/fraud exception “extends to materials or communication, created for planning, or in furtherance of, spoliation” of a party’s relevant e-mails – although “spoliation is not a crime nor is it a fraud.”
Litigants should remember that courts disagree about the types of wrongdoing that can strip away possible attorney-client privilege protections.