Modern business is often conducted through email; consequently, email review consumes most of the discovery process in commercial litigation. Unsurprisingly, reviewing emails for attorney-client privilege is one of the major cost drivers in litigation. The attorney-client privilege, of course, applies to confidential communications made between privileged persons for the purpose of requesting or providing legal advice. See Doug Gallagher & Manasi Raveendran, Attorney-Client Privilege for In-House Counsel, 10:2 Landslide (Nov./Dec. 2017). The importance of privilege review is highlighted by the amount of time, money, and legal brainpower dedicated to getting it right.
For litigants and courts, emails are often a source of attorney-client-privilege headaches. A common issue that arises during a privilege review is where the attorney appears in the email chain. In other words, emails may be cc’ed to an attorney instead of being sent directly to or from an attorney, raising the question of whether this affects privilege determinations.
Does the placement of an attorney on the “cc” line rather than the “To” or “From” line have any correlation to the likelihood that an email qualifies for attorney-client-privilege protections?
Some courts view emails sent directly to or from an attorney (direct attorney emails) as more likely to be privileged than emails cc’ing an attorney (attorney cc’ed emails). As these courts have reasoned, “merely copying or ‘cc-ing’ legal counsel, in and of itself, is not enough to trigger the attorney-client privilege.” Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 630 (D. Nev. 2013). However, the same can be said of situations in which an attorney is the direct recipient or sender of an email (i.e., such situations might not trigger the attorney-client privilege).
In other words, information about whether an attorney is cc’ed on or a direct recipient of an email, without more, provides little insight when assessing assertions of privilege. Courts have consistently reasoned that excluding “attorney cc’d emails” from privilege protections is not a logical bright-line rule. See In re Avantel, S.A., 343 F.3d 311, 320–21 (5th Cir. 2003) (noting that the fact that attorneys were cc’ed rather than direct recipients of email “does not disqualify it for the privilege”).
In the context of discovery, emails where the attorney is only cc’ed often raise suspicions about the predominant purpose of the communication. In other words, does the communication concern mainly legal advice if an attorney is not a direct recipient but only copied on the email?
In addressing this issue, courts have found no analytical difference between attorney cc’ed emails and direct attorney emails. “The deciding issue is whether the communications sought legal advice from a lawyer.” Heartland Consumer Prods. LLC v. DineEquity, Inc., No. 1:17-cv-01035-SEV-TAB, 2018 WL 3574737, at *4 (S.D. Ind. July 25, 2018) (stating that failure to list attorney as a direct recipient is not “prima facie evidence” that the email is not privileged, and collecting cases).
An attorney cc’ed email could be privileged for many reasons. First, in some cases, emails explicitly sought or concerned legal advice and were intended for the attorney, but the attorney’s email, for whatever reason, was simply typed in the cc field. See, e.g., Pearlstein v. BlackBerry Ltd., No. 13-CV-07060, 2019 WL 1259382, at *12 (S.D.N.Y. Mar. 19, 2019) (noting that in-house counsel was cc’ed on email, but it “expressly ask[ed] in-house counsel for legal review and to coordinate a review with external counsel as appropriate”). Second, “[c]ourts have held that communications constitute implicit requests for legal advice” and are thus protected “where an attorney is copied on the communications and the communications implicate specific legal issues.” Greater N.Y. Taxi Ass’n v. City of New York, No. 13 Civ. 3089, 2017 WL 4012051, at *12 (S.D.N.Y. Sept. 11, 2017) (emphasis added) (collecting cases). For example, counsel may be cc’ed on an email to provide legal advice about a company’s response to media coverage about a specific pending lawsuit. Third, in some instances, the attorney-client privilege can attach to communications between nonlawyers, leading courts to conclude that excluding (from privilege protections) emails in which an attorney is only copied is “unpersuasive as an absolute rule.” Stopka v. Am. Family Mut. Ins. Co., 816 F. Supp. 2d 516, 526–27 (N.D. Ill. 2011). It is not uncommon, for example, for a document to be provided to certain corporate personnel, with lawyers cc’ed, “for the purpose of informing them that legal advice has been sought or obtained.” In re Buspirone Antitrust Litig., 211 F.R.D. 249, 253 (S.D.N.Y. 2002).
In all of these scenarios—and undoubtedly many more—the fact that an email “is sent to many non-legal and few legal personnel is not determinative of whether it is privileged.” In re Buspirone Antitrust Litig., 211 F.R.D. at 253 (citation omitted). Attorney-client privilege sometimes is more likely to attach, however, when the email is sent or cc’ed “to individuals who ha[ve] a ‘need to know’ the legal advice.” Se. Pa. Transp. Auth. v. CaremarkPCS Health, L.P., 254 F.R.D. 253, 260 (E.D. Pa. 2008) (finding that when in-house counsel was cc’ed on an email to others who were “intimately involved” in a contract, “it [was] clear that [the sender] authored the redacted e-mail to relay legal advice [from outside counsel] and to seek additional guidance on particular contract terms from both legal and business personnel; as such, the document is privileged”). In short, time and again, “courts have held that the attorney being in the CC, rather than To or From, column is not prima facie evidence that the email is not privileged.” Heartland Consumer Prods., 2018 WL 3574737, at *4 (collecting cases).
The data from one recent matter supports the conclusion that any distinction between attorney cc’ed emails and direct attorney emails in terms of whether the privilege applies is negligible. A privilege review in a recent, large case in which the author was involved shows that approximately 55 percent of attorney cc’ed emails were privileged; for direct attorney emails, 43 percent were privileged. In other words, a greater percentage of attorney cc’ed emails than direct attorney emails qualified for attorney-client-privilege protections.
While these statistics reflect data from just one case, the upshot is that the perception of attorney cc’ed emails as a smoke screen to shield nonprivileged communications is not the reality.
When assessing privilege claims, the content and intent of the communication matter—and cc’ing does not change that. When lawyers are in the cc line, they can and do receive requests for legal advice similar to when they are direct recipients. If a communication discusses a legal issue and a lawyer “was clearly an intended recipient of those messages, the mere fact that [the lawyer’s] email address was typed in the ‘cc’ field rather than the ‘to’ field is irrelevant.” One Place Condo. LLC v. Travelers Prop. Cas. Co. of Am., No. 11-C-2520, 2013 WL 788092, at *6 (N.D. Ill. Mar. 1, 2013).
Courts, therefore, have been wise in their refusal to adopt any bright-line rules that deny privilege protections to an email merely because an attorney is cc’ed on that email but is not a direct recipient—and they should continue to follow this approach. Armed with the case law and data presented here, courts and litigants should continue to analyze the substance of the email—and not look simply at the placement of an attorney on the cc line—to make important privilege determinations.
