Illogical and Frightening “Need to Know” Doctrine

April 12, 2017

Corporations face two possible impediments when claiming privilege protection for purely internal communications. First, some courts see widespread intra-corporate circulation as tending to show that the communications primarily dealt with business rather than legal matters. This approach makes some sense, although a few courts take it to an unjustifiable extreme – applying a per se rule that the privilege cannot protect communications an employee sends both to a lawyer and to a non-lawyer requesting their input.

Second, the more frightening doctrine involves the “need to know” standard. In Peerless Indemnity Insurance Co. v. Sushi Avenue, Inc., the court rejected plaintiff’s privilege claim for several internal documents – because it had not established with evidence that the documents “were not disseminated beyond those persons who needed to know their contents.” Civ. No. 15-4112 ADM/LIB, 2017 U.S. Dist. LEXIS 22436, at *10 (D. Minn. Feb. 15, 2017).

Many courts follow this troubling waiver approach – which can force corporations to turn over to litigation adversaries purely internal communications simply because they were shared with a few employees who did not need them. Because this doctrine focuses mostly on lawyers’ communication to their corporate clients’ employees, we have the primary responsibility to limit internal circulation and re-circulation of our advice.