Court Criticizes Corporation’s Sneaky “Tactic” to Avoid Discovery

October 31, 2018

Corporations claiming attorney-client privilege protection for their emails must prove that the emails were primarily motivated by their need for legal advice.  Simply adding lawyers’ names as direct or copy recipients does not assure protection.  Lawyers must and clients should understand this – but some clients cannot avoid the temptation to withhold documents based on such steps.

In Entrata, Inc. v. Yardi Systems, Inc., the court noted that several emails “appear to be marked as privileged for no other reason than the fact that [lawyers] are recipients of the mail or are ‘CCed’ on the email.”  Case No. 2:15-cv-00102, 2018 U.S. Dist. LEXIS 149239, at *10 (D. Utah Aug. 30, 2018).  The court rejected the privilege assertions for one email, because “nowhere in the email does anyone seek any legal advice.”  Id.  The court also noted that “there was evidence that ‘[defendant] copied in-house-counsel [sic] on non-privileged communications as a tactic to avoid having emails discovered.'” Id. (internal citation omitted).

Lawyers should remind their clients:  (1) to include requests for legal advice in the body of their emails seeking such advice; (2) that merely including lawyers as direct or copy recipients does not automatically assure privilege protection; and (3) that discussing or (especially) writing about adding lawyers “as a tactic to avoid having the emails discovered” may forfeit privilege protection even for legitimately protected documents, or worse.