Last week’s Privilege Point discussed two cases decided about two weeks apart. One court held that a client copying a lawyer on an email did not demonstrate that the client was seeking legal advice about the email, while the other case reached the opposite conclusion.
Just a few weeks later, the District of Nevada rejected a privilege claim for an email on which “[i]n-house counsel is the last person listed on the courtesy copy line.” Henderson Apartment Venture, LLC v. Miller, Case No. 2:09-cv-01849-HDM-PAL, 2011 U.S. Dist. LEXIS 40829, at *25 (D. Nev. Mar. 31, 2011). The court had reviewed the email in camera, and concluded that “[n]othing in the e-mail suggests that legal advice is being solicited from counsel. No question is posed to counsel in the e-mail.” Id. About three weeks later, the District of Colorado explained its approach to lawyers being copied on emails. In Iowa Pacific Holdings LLC v. National Railroad Passenger Corp., Civ. A. No. 09-cv–02977-REB-KLM, 2011 U.S. Dist. LEXIS 45879 (D. Colo. Apr. 21, 2011), the court distinguished between emails sent directly to a lawyer and emails on which a lawyer is only copied. The court explained that “where an attorney is a direct recipient of an email and Defendant contends that the emails were sent for purposes of securing legal advice, the Court is satisfied with the Defendant’s representation.” Id. at *16. In contrast, “where an attorney was merely carbon copied on an email, and there is no further proof that an attorney was included for the purpose of seeking legal advice, an in camera inspection is necessary.” Id. The court ultimately concluded that the defendant had fallen short of proving privilege protection for five emails on which a lawyer was merely copied.
Aside from several courts’ humorous use of the term “carbon copy” when discussing emails, these four cases provide useful guidance for determining when copying a lawyer will likely assure privilege protection. The withholding party has to demonstrate that the client was seeking legal advice when copying the lawyer, and the court normally will conduct an in camera review in making this determination. Lawyers should train their clients to articulate in the email why they are sending a “carbon copy” to the lawyer.