Lawyers representing corporations all recognize the privilege waiver risk of disclosure to outsiders. But there are two huge risks to privilege protection even for internal corporate communications. Pointing to the “primary purpose” standard underlying privilege protection, some courts find that the privilege almost by definition cannot protect an internal corporate communication seeking advice both from lawyers and non-lawyers.
In Ictech-Bendeck v. Waste Connections Bayou, Inc., the court referred to the frightening decision in In re Vioxx Products Liability Litigation, 501 F. Supp. 2d 789, 805 (E.D. La. 2007), in holding that “[w]hen a corporation simultaneously sends communications to both lawyers and non-lawyers, . . . ‘it usually cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes.'” Civ. A. Nos. 18-7889, -8071, -9312 & 19-11133, -14512 SECTION “E” (5), 2024 U.S. Dist. LEXIS 99, at *41-42 (E.D. La. Jan. 2, 2024) (alterations in original). This unrealistic approach goes to the original non-privileged characterization of the communication.
Although not all courts apply this inexplicably narrow view, wise in-house and outside lawyers warn their corporate clients’ employees to communicate one-on-one with them — rather than also seeking advice from non-lawyers in the same communication. Next week’s Privilege Points will address the other main threat to internal corporate communications privilege — the “need to know” standard.