Not surprisingly, the attorney-client privilege cannot protect preexisting documents that a client sends to a lawyer for purposes of receiving legal advice about them. On the other hand, contemporaneous communications among a corporate client’s representatives might deserve protection if created with the initial intent to later seek a lawyer’s advice (such as communications formulating a question for the lawyer).
In Hilton-Rorar v. State & Federal Communications Inc., Case No. 5:09-CV-01004, 2010 U.S. Dist. LEXIS 36121 (N.D. Ohio Apr. 13, 2010), the court dealt with communications that seem to fall in between these examples – an e-mail string that did not intrinsically deserve privilege protection, but which one of the authors later forwarded to a lawyer. The court protected the e-mail string – explaining that “[t]o the extent these e-mails contain attachments or other e-mail communications that are not otherwise independently privileged, the attorney-client privilege nevertheless applies,” because ordering disclosure “would necessarily reveal the substance of a confidential client communication made seeking legal advice.” Id. at *21-22. Other courts have also reached this conclusion, but have required that the client demonstrate that the underlying e-mail string was produced elsewhere in discovery (thus assuring that the other side receives the underlying communications). In Hilton-Rorar the court did not insist on such proof, instead explaining that “[p]resumably, any unprivileged e-mail attachment or content (in some independent form) would have been produced if responsive to an appropriately worded request.” Id. at *22 n.3.
Such an expansive view allows companies to withhold e-mail strings that would not otherwise independently deserve privilege protection.