As a recent Privilege Point noted, the attorney-client privilege can protect employee-to-employee communications: (1) if the employees are gathering facts or formulating questions to inform a lawyer or pose those questions to the lawyer; (2) if the employees are contemporaneously memorializing otherwise privileged communications with the lawyer; or (3) most commonly, if the employees are relaying legal advice to other employees who need it.
In most, if not all, privilege situations like this, courts read the withheld documents to determine if they fall into one of those three categories. In Dolby Laboratories Licensing Corp. v. Adobe Inc., the court upheld a magistrate judge’s holding that one withheld document did not deserve privilege protection, despite defendant’s argument that “the document was sent at the direction of counsel to gather information to be used to obtain legal advice.” Case No. 18-cv-01553-YGR, 2019 U.S. Dist. LEXIS 166025, at *10 (N.D. Cal. Sept. 26, 2019). The judge noted that “[h]ad the document contained substantive information related to counsel’s request, the evidence provided by Adobe likely would have been sufficient to establish privilege.” Id. In contrast, the judge reversed the magistrate judge’s denial of privilege protection for another document – which was based on the magistrate judge’s observation “that the specific document at issue contained ‘indicia of business purposes.'” Id. at *11. After reviewing that document in camera, the court held that “the magistrate judge did not give sufficient regard to the sworn statement offered by the sender of the email stating that it was sent ‘in response to [a] request from [in-house counsel]’ communicated just one day prior and ‘addresse[d] information necessary for Adobe’s in-house attorneys to provide legal advice.'” Id. (alterations in original).
These two examples highlight ways that corporations can increase the odds of successfully withholding employee-to-employee communications. Affidavits can sometimes carry the day, but it is always best for in-house lawyers to train their colleagues to explicitly include on the face of privileged employee-to-employee documents the basis for the privilege protection (one of the three scenarios described above).