Courts analyzing privilege assertions for email threads often look for some indicia of that protection on the face of those emails.
In Anderson v. Trustees of Dartmouth College, Case No. 19-cv-109-SM, 2020 U.S. LEXIS 153785 (D.N.H. Aug. 25, 2020), an expelled student sued Dartmouth for applying a faulty disciplinary process. Dartmouth withheld approximately 5,000 pages of documents, many of which were email threads. The court rejected most of Dartmouth’s privilege claims. One group of withheld documents constituted emails between non-lawyer Dartmouth employees. Although one email “discusses the relevant New Hampshire statute, . . . that fact does not render the email subject to an attorney-client privilege. And, while in-house counsel . . . is copied on the email, neither [of the Dartmouth employees] requests legal advice, nor does [Dartmouth’s in-house lawyer] offer any.” Id. at *6. Another batch of withheld emails “invite[d] feedback or comment on potential draft email responses to the plaintiff” – but “[t]hose requests were not made specifically to counsel, [and] instead generally requested responses from all email recipients.” Id. at *7-8. The court also rejected Dartmouth’s argument that its employees sent Dartmouth’s lawyer documents seeking legal advice – bluntly holding that “[o]f course, merely saying so does not make the documents privileged.” Id. at *9. The court also noted that “Dartmouth fail[ed] to provide any sort of affidavit or declaration from an individual with personal knowledge of that practice, or any other evidence that might establish that practice.” Id. at *9 n.2.
Lawyers should educate their clients about the importance of including on the face of their emails indicia of those emails’ privileged nature (normally, that the clients seek the lawyers’ legal advice). And of course lawyers must support privilege claims with whatever necessary affidavits the pertinent court would expect.