Can the Privilege Protect Intracorporate Communications Sent Simultaneously to a Lawyer and a Nonlawyer?

November 6, 2013

Some courts inexplicably hold that “when a communication is simultaneously emailed to a lawyer and a non-lawyer,” the privilege cannot apply because the communication by definition is not primarily legal. United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., Case No. 6:09-cv-1002-Orl-31TBS, 2012 U.S. Dist. LEXIS 158944, at *11-12 (M.D. Fla. Nov. 6, 2012). This narrow approach seems out of step with common practice.

Not all courts take such a restrictive approach. In Surfcast, Inc. v. Microsoft Corp., Microsoft sought plaintiff’s internal communications, arguing that “the fact that [an] e-mail was directed to others in addition to [a lawyer] renders it unprivileged.” No. 2:12-cv-333-JAW, 2013 U.S. Dist. LEXIS 111417, at *7 (D. Me. Aug. 7, 2013). The court disagreed, holding that “asking for legal advice in a covering e-mail when only one of the individuals to whom it was sent is an attorney demonstrates that [the sender] expected [the lawyer] to act as an attorney at the time.” Id. at *6.

Although corporations should welcome this type of analysis, the court also noted that (1) the lawyer was a direct recipient of the email rather than a copy recipient, and (2) the email “requested legal advice.” Id. at *5. Corporations and their lawyers should train employees to take such steps.