Court Criticizes Corporation's Sneaky "Tactic" to Avoid Discovery

McGuireWoods LLP
Contact

Corporations claiming attorney-client privilege protection for their emails must prove that the emails were primarily motivated by their need for legal advice.  Simply adding lawyers' names as direct or copy recipients does not assure protection.  Lawyers must and clients should understand this – but some clients cannot avoid the temptation to withhold documents based on such steps.

In Entrata, Inc. v. Yardi Systems, Inc., the court noted that several emails "appear to be marked as privileged for no other reason than the fact that [lawyers] are recipients of the mail or are 'CCed' on the email."  Case No. 2:15-cv-00102, 2018 U.S. Dist. LEXIS 149239, at *10 (D. Utah Aug. 30, 2018).  The court rejected the privilege assertions for one email, because "nowhere in the email does anyone seek any legal advice."  Id.  The court also noted that "there was evidence that '[defendant] copied in-house-counsel [sic] on non-privileged communications as a tactic to avoid having emails discovered.'" Id. (internal citation omitted).

Lawyers should remind their clients:  (1) to include requests for legal advice in the body of their emails seeking such advice; (2) that merely including lawyers as direct or copy recipients does not automatically assure privilege protection; and (3) that discussing or (especially) writing about adding lawyers "as a tactic to avoid having the emails discovered" may forfeit privilege protection even for legitimately protected documents, or worse.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© McGuireWoods LLP | Attorney Advertising

Written by:

McGuireWoods LLP
Contact
more
less

McGuireWoods LLP on:

Reporters on Deadline

Related Case Law

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.