Last week’s Privilege Point confirmed that the attorney-client privilege protects a client’s employee’s communication conveying facts to a lawyer from whom the client seeks advice. AXA XL Ins. Co. v. UK Ltd. v. McPherson, Case No. 8:25-cv-202-WFJ-AAS, 2026 U.S. Dist. LEXIS 75960 (M.D. Fla. Apr. 8, 2026). Two days earlier, another court addressed the privilege’s application to an upstream communication, purely among a corporate client’s employees.
In Rusk v. Henry County, an FMLA plaintiff challenged the withholding by the defendant county of “an email chain among its employees generated days after [plaintiff]’s termination.” Case No. 4:25-cv-04076-SLD-RLH, 2026 U.S. Dist. LEXIS 74386, at *1 (C.D. Ill. Apr. 6, 2026). The magistrate judge found the privilege applicable, because the “email thread exchanged among two County employees discuss[ed] information ‘requested by the County’s attorney.’ ” Id. at *3-4. Although the emails “may not literally reflect legal advice,” they ” ‘relate to’ such advice because they concerned potential litigation and were solicited by the County’s attorney.” Id. at *5. A little over seven weeks later, the district judge vacated the magistrate judge’s generous opinion because it wasn’t thorough enough. Next week’s Privilege Point will describe the district judge’s more demanding standard.
A little over seven weeks later, the district judge vacated the magistrate judge’s generous opinion because it wasn’t thorough enough. Next week’s Privilege Point will describe the district judge’s more demanding standard.