Can the Privilege Protect Emails that Lawyers Do Not Send or Receive?

June 8, 2016

Because privilege logs generally require withholding litigants to identify emails’ senders and recipients, the absence of a lawyer’s name often triggers discovery skirmishes. Not surprisingly, the withholding litigants’ adversaries often argue that communications not involving a lawyer cannot possibly be privileged.

In ChriMar Systems Inc. v. Cisco Systems Inc., the court held that the privilege and the work product doctrine protected emails that a patent inventor sent to himself — noting that the inventor and his lawyers “attest that the emails memorialize and reflect confidential communications made for the purpose of conveying legal advice.” Case No. 13-cv-01300-JSW (MEJ), 2016 U.S. Dist. LEXIS 54375, at *19 (N.D. Cal. Apr. 21, 2016). About a week later, another court dealt with an email that was not sent by or received by a lawyer. In FPP, LLC v. Xaxis US, LLC, No. 14 CV 06172-LTS-AJP, 2016 U.S. Dist. LEXIS 57421 (S.D.N.Y. Apr. 29, 2016), defendant’s senior vice president sent an email to several of his colleagues, and the company’s outside counsel. The company’s CFO responded to the email, but removed the outside counsel from the recipient list. District Judge Swain acknowledged that employee-to-employee communications can deserve privilege protection, but rejected the defendant’s privilege claim for the CFO’s response. The court noted that the CFO had deliberately “removed the attorney from the distribution list when she replied, and indicated in her declaration . . . that she had merely offered her comments for possible use by a business colleague in a future communication with the attorney.” Id. at *5.

Although email strings that do not include lawyers can sometimes deserve privilege protection, courts usually demand evidence that the emails relayed a lawyer’s advice; memorialized a lawyer’s advice; or (occasionally) involved clients formulating questions to pose to their lawyer.