In the corporate setting, it can be difficult to distinguish between communications that are primarily business-related and those that are primarily legal. This difficulty worsens if the same person plays both roles — successively or, especially, simultaneously.
In Netskope, Inc. v. Fortinet, Inc., plaintiff sought discovery of communications to and from “a Fortinet executive who has held both business and legal counsel roles.” Case No. 22-cv-01852-TLT (AGT), 2025 U.S. Dist. LEXIS 224925, at *3 (N.D. Cal. Nov. 14, 2025). The court made the point that although the executive “has worked as in-house counsel . . . it does not follow that his emails are automatically privileged.” Id. at *5. That just scratches the surface of the privilege call challenge. Within a single communication and even within a single sentence, some portions might be primarily legal while others might not.
In-house lawyers helping to maximize their communications’ privilege protection should assure that the content (not just the label) of their primarily legal communications is self-evident to a privilege reviewer and especially to a court.