In the course of an attorney-client relationship, hundreds, if not thousands, of emails may be exchanged between the parties. How many of those emails from the client are directly addressed to counsel and how many are carbon copied or forwarded? Hamdan v. Indiana University Health North makes the case for how to maintain privileged communication.
In the defamation claim by Dr. Talal S. Hamdan against his former employer, Indiana University Health North, the plaintiff requested “email communications between and among certain supervisory and subordinate medical, nursing and human resources personnel at the hospital.” The defendant denied the request, claiming both attorney-client privilege and work-product protection. The plaintiff then turned to the court, asking it to compel the employer to turn over the documents. The Southern District of Indiana reviewed the communications, specifically three chains, and ruled.
First email chain: Correspondence is protected by attorney-client privilege.
“The nature of the correspondence makes it clear that legal advice was sought from the attorneys included in the chain of correspondence and the entire line of communications was related to that purpose and made in confidence by the client.”
Second email chain: Neither attorney-client privilege nor work-product doctrine applies. Plaintiff’s motion to compel is granted.
“No legal advice was sought by the emails, nor were they related to the purpose of seeking legal advice. … None of the emails represent work performed by the attorneys or at the direction of the attorneys.”
Third email chain: Correspondence is protected by attorney-client privilege
“The nature of the correspondence makes it clear that legal advice was sought from the attorney included in the chain of correspondence and the entire line of communications was related to that purpose and made in confidence by the client.”
While the defendant won two out of three, the singular lesson for clients and attorneys alike is that carbon copying or forwarding email communication does not amount to protection from discovery. Correspondence must either be directed to counsel and requesting legal advice or must contain work-product by or at counsel in anticipation of litigation. Case closed. Spellcheck. Send.