The Privilege Can Protect Employee-to-Employee Communications

August 26, 2015

Because attorney-client privilege protection depends primarily on communications’ content, privilege logs rarely play a dispositive role in courts’ analyses. But sometimes the adversary will point to the “author” and “recipients” data in challenging a privilege claim — noting the absence of a lawyer’s name.

Courts universally acknowledge that employee-to-employee communications may deserve privilege protection. In Stryker Corp. v. Ridgeway, Case Nos. 1:13-CV-1066 & 1:14-CV-889, 2015 U.S. Dist. LEXIS 93741, at *9 (W.D. Mich. July 20, 2015), the court flatly rejected defendant’s argument that “in and of itself” the lack of a lawyer’s involvement in plaintiff’s communications made privilege unavailable. The court explained that “[i]n the corporate context, the privilege applies to communications of any corporate employee on matters within the scope of the employee’s corporate duties when the employee is aware that the information is being provided to enable the corporation to obtain legal advice.” Id. On the same day, another court generally rejected a corporation’s privilege claim, but acknowledged that the privilege can protect communications that “evidence . . . in-house counsel’s advice or otherwise reflect counsel’s involvement in decisions relating to legal matters, even if the communication is between two members of . . . management.” Roberts Tech. Grp., Inc. v. Curwood, Inc., Civ. A. No. 14-5677, 2015 U.S. Dist. LEXIS 95779, at *4 (E.D. Pa. July 20, 2015) (emphasis added).

Given the usually cryptic nature of privilege logs, some litigants understandably argue that the privilege cannot apply to employee-to-employee communications — but every court disagrees.