Remember the Nitty-Gritty of Privilege Analyses: Part II

September 20, 2017

Last week’s Privilege Point described two cases in which courts read withheld emails in making privilege calls.  Most judges understandably consider “privilege” headers irrelevant, and instead look for privileged content on the face of the emails.

In camera reviews can also help judges analyze other privilege issues.  In Martinez v. Kleinfeld Bridal Corp., the court assessed “plaintiff’s contention that notes [reflecting employee meetings] are not privileged because defense counsel [from Littler Mendelson] functioned as an investigator and provided business (rather than legal) advice.”  No. 16-CV-348 (RA) (JLC), 2017 U.S. Dist. LEXIS 103261, at *4 (S.D.N.Y. June 30, 2017).  After reviewing the notes in camera, the court rejected plaintiff’s argument — noting that the notes “refer to the party carrying out the investigation with the pronoun ‘we,’ and refer to defense counsel as ‘the labor attorneys’ or ‘the attorneys.'”  Id. at *5 (internal citation omitted).

Corporate lawyers should train their clients (and constantly remind themselves) that any emails or other documents for which they could legitimately claim privilege protection should on their face contain language that will assure success in a later privilege fight.  This usually consists of explicit requests for legal advice and explicit legal advice back –but can involve more subtle attention to wording.  This is one area of the law in which lawyers and their clients essentially create their own exhibits.

Remember the Nitty-Gritty of Privilege Analyses: Part I