Eighth Circuit and S.D.N.Y. Opinions Highlight Common-Sense Strategy to Maximize Privilege Protection

December 1, 2021

While lawyers should familiarize themselves with the sometimes counter-intuitive and nuanced privilege law, they should never lose sight of the nitty-gritty of courts’ application of that law. The attorney-client privilege protects communications primarily motivated by a client’s request for legal advice and a lawyer’s responsive provision of legal advice. It doesn’t take a genius to figure out what courts look for.

In Jacobson Warehouse Co. v. Schnuck Markets, Inc., 13 F.4th 659 (8th Cir. 2021), the court rejected privilege protection for a company’s Accounts Payable Manager emails to (among others) the company’s in-house lawyers. The court noted that: (1) “in voicing her concerns, [the Manager] was not explicitly or implicitly seeking legal advice on correct interpretation of [an agreement]”; and (2) “the emails [did not] reflect the legal advice of counsel.” Id. at 677. Two days later, in In re Allergan PLC Securities Litigation, No. 18 Civ. 12089 (CM) (GWG), 2021 U.S. Dist. LEXIS 171331 (S.D.N.Y. Sept. 9, 2021), the Southern District of New York (Judge Gorenstein) similarly rejected privilege protection for intracorporate communications to in-house lawyers. The court noted that “[i]n none [of the documents] is there a direct request to an attorney that makes clear that legal advice (as opposed to business advice) is being sought.” Id. at *13. The court also found that the communications did not amount to an implicit request for legal advice because “an attorney is just one of numerous persons who are sent an e-mail asking for views as to a particular document or course of action.” Id. The court characterized the communications as “consistent with a group of corporate employees seeking to solve a corporate problem and keeping an in-house attorney apprised of the conversation.” Id.

It is not difficult to imagine that the Eighth Circuit and the Southern District of New York would have reached a different result if the intracorporate communications had accurately contained explicit requests for legal advice, generating an in-house lawyer’s explicit legal advice in response. Corporate executives and their in-house lawyer colleagues obviously cannot “game the system,” but they should always document any legitimately privileged request for legal advice and responsive legal advice.