New Guidance for Privilege Analysis

The fact that in-house counsel is copied on an email does not necessarily mean the email is privileged, according to a federal district court that recently required production of attorney-client communications it deemed administrative and “scrivener-like.”

In doing so, the court created a set of guideposts for analyzing whether communications between in-house attorneys and their non-lawyer colleagues may be protected by attorney-client privilege. The examples set forth in the court’s opinion are a valuable resource to help litigators determine which internal business communications can be withheld from production, say ABA Section of Litigation leaders.