Court Issues a Vague but Frightening Opinion about Waiver Within a Company

October 20, 2010

As discussed in previous Privilege Points, some courts point to a wide distribution of privileged eā€‘mails within a company in concluding that the communications must have been primarily motivated by business rather than legal reasons. Although some courts apply a waiver analysis for such intra-corporate disclosure of privileged communications, very few courts have actually stripped the privilege away on that basis.

In Traficante v. Homeq Servicing Corp., Civ. A. No. 9-746, 2010 U.S. Dist. LEXIS 80387, at *1 (W.D. Pa. Aug. 10, 2010), the court ordered defendant to produce what the court described as a “communication history document.” Although it is difficult to follow either the facts or the legal analysis in this very brief opinion, the court pointed to defendant’s admission that “‘low level’ employees do enter notes into the communication history.” Id. at *4 (internal quotations and citation omitted). The court also noted that defendant did not support with evidence its argument that such “‘low level employees’ cannot access the entire history for a given loan.” Id. at *4-5 (internal quotations and citation omitted). The court ultimately concluded that “I am persuaded by Plaintiff that ‘low level’ employees who have no need for said information have access to it via the communication history document.” Id. at *5.

It is rare enough for a court to find that a company waives the privilege through intra-corporate disclosure, but even rarer for the court to base its conclusion on mere access rather than actual disclosure.