Illinois Federal Court Addresses a Substantive and a Logistical Privilege Issue: Part II

July 8, 2020

Last week’s Privilege Point addressed an Illinois federal court’s holding that the attorney-client privilege protected a company executive’s relaying of legal advice to another executive, as well as the former’s email about his intent to discuss an intellectual property matter with the company lawyer.

In addition to this substantive analysis, the court in RTC Industries, Inc. v. Fasteners for Retail, Inc., Case No. 17 C 3595, 2020 U.S. Dist. LEXIS 50518 (N.D. Ill. Mar. 24, 2020), dealt with the redaction issue. Because the attorney-client privilege primarily depends on content, courts frequently allow redaction of some portions of a communication’s content — while ordering disclosure of the rest. This contrasts with work product disputes, which rarely involve redaction. Work product protection depends primarily on context, which means that the work product doctrine usually protects all of a document or none of it. The RTC Industries court very carefully excised portions of emails, focusing on those portions’ content. For instance, the court upheld redaction of “the second paragraph of Mr. Hardy’s email . . . starting with ‘Relative to . . .’ up to the comma” and “the first sentence of Mr. Ward’s email to Messrs. Hardy and Parsons starting with ‘Can you.’” Id. at *26-27.

Because the attorney-client privilege depends on content, courts sometimes split even a single sentence into privileged and non-privileged portions.