A word of caution to executives who cc in-house counsel or forward emails to them: If the content does not pertain to obtaining legal device, the court may not consider the communication privileged. A recent order underscores this.
In the case of Texas Brine Company, LLC. v. Dow Chemical Company et al, the plaintiff was suing the defendant for alleged encroachment of a solution mining cavern on its property, resulting in more than $100 million in damages.
Among the several discovery issues that arose in the case was the defendant’s challenge to the plaintiff’s privilege log entries. Some of those entries required an in camera review by the court.
The court’s law and analysis in the order includes a refresher from cases Hodges, Grant & Kaufmann v. U.S. Gov’t, Dep’t of the Treasury, I.R.S., Upjohn Co. v. United States and United States v. Robinson on what makes documents privileged.
The court acknowledges the complication of applying privilege to in-house counsel communication because counsel may serve multiple roles, including ones that are not related to legal.
With regard to cc-ing counsel, the court cites Equal Employment Opportunity Comm’n v. BDO USA, L.L.P.:
“[C]ommunications by a corporation with its attorney, who at the time is acting solely in his capacity as a business advisor, [are not] privileged, nor are documents sent from one corporate officer to another merely because a copy is also sent to counsel.”
The court continues in the order to clarify what’s not privileged by citing Freeport-McMoran Sulphur, LLC v. Mike Mullen Energy Equip. Res., Inc.:
“[A] document that simply transmits a document to other individuals without more does not garner the protection of the attorney-client or work product privilege.”
The court also raises work-product doctrine protection by citing cases like United States v. Nobles, Hickman v. Taylor and Federal Rule of Civil Procedure 26(b)(3):
The protection “can apply where litigation is not imminent, ‘as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation.’”
With the sturdy law and analysis foundation in place, the court designated a number of entries in the privilege log as not protected by attorney-client privilege. For example:
“Documents 133, 138, 191, and 299 discuss well layouts and while these emails may implicate the application of certain regulations, it is clear that these emails are between and among employees providing their business and/or technical expertise. There is no indication of any legal advice sought or provided.”
In summary, cc-ing counsel or forwarding documents to counsel may only be privileged if the communication includes legal advice.