Courts Examine Privilege Protection for Employee-to-Employee Communications

January 19, 2011

The attorney-client privilege protects communications between clients and their lawyers. In a corporate setting, however, the privilege sometimes can protect employee-to-employee communications (not directly involving a lawyer). Two December decisions explored the contours of such privilege protection.

In Willnerd v. Sybase, Inc., Case No. 1:09-CV-500-BLW, 2010 U.S. Dist. LEXIS 135781 (D. Idaho Dec. 22, 2010), the court held that the privilege did not protect the substance of ordinary conversations between two employees, although it protected one of the employees’ later e-mail to the company’s lawyer recounting the conversation. Less than two weeks earlier, a California appellate court held that the privilege protected one employee’s communication to another employee relaying a company lawyer’s questions and advice. S. Cal. Edison Co. v. Superior Court, No. B227781, 2010 Cal. App. Unpub. LEXIS 9809 (Cal. Ct. App. Dec. 13, 2010).

Although the privilege normally does not cover employee-to-employee communications, it can protect such communications (1) preceding a request for legal advice (in which the employees jointly formulate questions for the lawyer) or (2) relaying legal advice to other employees who need it.