Another Court Follows the Troubling Vioxx Approach

January 2, 2013

Previous Privilege Points have noted many courts’ increasing insistence that a corporate litigant withholding privileged documents prove that every recipient of each document had a “need to know” the document’s substance. Some courts take an even narrower view of the privilege in the corporate setting, usually relying on a 2007 decision in the multidistrict litigation against Merck. In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007).

In United States ex rel. Baklid-Kunz v. Halifax Hospital Medical Center, the court cited Vioxx and an earlier Middle District of Florida decision in holding that “when a communication is simultaneously emailed to a lawyer and a non-lawyer, the corporation ‘cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes.'” Case No. 6:09-cv-1002-Orl-31TBS, 2012 U.S. Dist. LEXIS 158944, at *11-12 (M.D. Fla. Nov. 6, 2012) (citation omitted). Later in the opinion, the court seemed to back off a bit, noting that the simultaneous transmission of an email to a non-lawyer “weighs against a privilege finding.” Id. at *23 n.5. However, throughout the opinion the court took a restrictive view of the privilege in the corporate setting. Distinguishing legal advice from “’compliance advice,’” the court rejected a corporate litigant’s argument that the privilege protected compliance department employees’ communications because “’the compliance department operates under the supervision and oversight of [the] legal department.’” Id. at *23 (internal citation omitted). The court’s response to that position was blunt: “Halifax’s organizational structure is of no consequence.” Id.

Although there may be essentially no way for most corporations’ privilege to survive the nearly per se Vioxx approach, all corporations should try to restrict the internal distribution of emails to those with a “need to know.”