The last two Privilege Points addressed privilege protection for an organization’s employees’ communications just among themselves. However, a district judge recently vacated a magistrate judge’s opinion, summarized in last week’s Privilege Point, granting such protection. Rusk v. Henry Cnty., Case No. 4:25-cv-04076-SLD-RLH, 2026 U.S. Dist. LEXIS 118733 (C.D. Ill. May 29, 2026).
The district judge held that the magistrate judge: (1) improperly assessed privilege protection by category rather than document-by-document, including attachments that might have been “discoverable apart from their capacity as attachments to the email exchange”; (2) erroneously relied on the defendant’s “unsworn averments”; (3) ignored the possibility that some portions of a recorded meeting may not have deserved privilege protection; and (4) did not explore “whether the parties to the communication knew it was confidential, whether they were informed the communication was part of an investigation prompted by counsel, and whether the subject matter of the communication was in fact related to the provision of legal advice.” Id. at *9, *10-11, *12-13.
The district court concluded by recognizing that “[p]erhaps an in camera review will be necessary to determine” the critical factual context. Id. at *14. So, lawyers should welcome the possibility that employees’ communications just among themselves might deserve privilege protection but must recognize the understandably heightened factual burden of demonstrating its applicability.