Nearly every court protects as privileged only those communications or documents whose “primary purpose” was for the clients to request legal advice or the lawyers to provide the requested legal advice. A few courts have taken a more liberal “one significant purpose” approach, but that favorable doctrine has not widely taken root.

In assessing privilege protection, courts primarily focus on the communications’ content. But some other factors can help. In Lawson v. Spirit AeroSystems, Inc., No. 18-1100-EFM-ADM, 2020 U.S. Dist. 24203, at *6 (D. Kan. Feb. 12, 2020), the court found that Spirit “has met its burden to establish privilege-specifically, that legal advice predominated over business advice.” The court reached this conclusion “[a]fter reviewing the subject documents in camera and taking into account the timing of these emails.” Id. The timing factor focused on the then-tense relationship between Spirit and its former CEO plaintiff seeking retirement benefits, which weighed in favor of privilege protection. Six days later, in Carman v. Signature Healthcare, LLC, No. 4:19-CV-00087-JHM-HBB, 2020 U.S. Dist. LEXIS 27156, at *7-8 (W.D. Ky. Feb. 18, 2020), the court similarly held that an in-house lawyer’s communications deserved privilege protection, after explaining that “[n]otably, [the in-house lawyer’s] e-mail signature block identifies her position as ‘Associate Counsel, Litigation,’ suggesting that her primary duties lie in litigation-related matters as opposed to general business consulting.” Of course, the court also reviewed the documents’ content.

In the privilege world, content is king. But corporations should keep in mind that other factors might help tip the scales in favor of privilege protection.