We’re all familiar with the philosophical argument of whether a tree still makes a sound when it falls if no one is around to hear it. How about the legal argument of whether attorney-client privilege still applies to emails without an attorney around to write or receive them?
Recently in Rowan v. Sunflower Elec. Power Corp., in response to the plaintiff’s document request, the defendant produced a privilege log, asserting that privilege also applied to the emails between non-attorney employees, to those that were carbon copied to the attorney and even ones that weren’t shared at all. The plaintiff objected, leaving the court to decide the “necessity that an attorney be the author or direct recipient of an email for the privilege to apply.”
U.S. Magistrate Judge Teresa J. James for the District of Kansas acknowledged that it was settled that “attorney-client privilege does not require an attorney to have either authored or received the document at issue in order to maintain the privilege.” But, she outlined, the issue was whether it also applied to corporate employees, “some of whom consult with each other in preparation for or in the midst of consulting with an attorney to ensure that the attorney’s advice is based on full knowledge of all relevant facts.”
For the judge, where the client was a corporation, privilege still applies to communications between non-attorneys if these communications are confidential and for the purpose of obtaining legal advice from an attorney.