Courts dealing with intra-corporate e-mail communications sometimes point to circulation of an e-mail beyond those with a “need to know” as causing the company to fail the “expectation of confidentiality” or “waiver” components of the privilege. The Southern District of New York has articulated another danger of such a practice.
In Lyondell-Citgo Refining, LP v. Petroleos de Venezuela, S.A., No. 02 Civ. 0795 (CBM), 2004 U.S. Dist. LEXIS 26076 (S.D.N.Y. Dec. 24, 2004), Judge Motley upheld a magistrate judge’s conclusion that certain internal e-mails of the defendant oil company did not deserve privilege protection. The magistrate judge had found that the e-mails primarily related to business matters. Among other things, the magistrate judge (and Judge Motley) explained that “the inclusion of people outside the legal department in the recipient list further supported the conclusion that the email contained business advice.” Id. at *3 (citation omitted).
Lawyers should train their clients to circulate privileged e-mails only to those with a “need to know” – a more widespread circulation risks losing a privilege claim under several elements of the privilege.