How Do Courts Apply the “Primary Purpose” Privilege Standard?: Part I

February 24, 2016

In nearly every court, the attorney-client privilege protects intra-corporate communications only if their “primary purpose” was the corporation’s need for legal advice. How do courts apply this standard? One might think that companies’ lawyers can simply file affidavits confirming under oath that clients’ communications to them sought legal advice, and that their communication to clients contained or reflected their legal advice.

In FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015), the court dealt with three documents corporate employees sent to an in-house lawyer. The court rejected privilege protection for all the documents. For one, it explained that “[a]lthough [an in-house lawyer] claimed by sworn declaration that the email was a request for legal advice, AbbVie has not provided any supporting information that would allow the court to reach the same conclusion.” *26. For the other two documents, the court similarly explained that “[b]y declaration, [the in-house lawyer] has claimed that the redacted portion contains a request for legal advice addressed to the legal department. We disagree.” Id. at *31. In addition to the court’s troubling conclusion that the in-house lawyer filed a false affidavit, the court’s holding highlights the importance of corporate employees explicitly articulating their communications’ legal purpose. Later affidavits failed to make up for the absence of such contemporaneous privilege indicia.

Lawyers should not only train their clients on this issue, they should themselves remember this lesson when communicating to their clients. Next week’s Privilege Point will address the same court’s rejection of an outside lawyer’s privilege claim for his report to a client.