Corporate litigants’ privilege logs often trigger privilege disputes about internal corporate communications not involving a lawyer — because the log does not mention a lawyers’ participation. But there are at least two circumstances where such communications can deserve privilege protection: (1) when employees communicate with each other after one of them receives legal advice, and (2) when employees communicate with each other before reaching out for legal advice.
In Great American Insurance Co. v. Wilcox Properties of Columbia, LLC (In re Dimensions in Senior Living, LLC), the court rejected defendant’s argument that such employee-to-employee communications could not be privileged — holding that “employees with a need to know the discussions” were “discussing the opinions of coverage counsel.” Ch 11 Case No. BK22-80865, Adv. No. AP 24-8007, 2024 Bankr. LEXIS 1854, at *4-5 (Bankr. D. Nev. Aug. 7, 2024). Several weeks later, the court in P.A. ex rel. A.A. v. Voitier, Civ. A. No. 23-2228, Section: “O”(1), 2024 U.S. Dist. LEXIS 154340 (E.D. La. Aug. 28, 2024), similarly rejected the plaintiff’s same argument. The court surmised that perhaps the two employees might have been “crafting a request for legal advice to be sent to counsel.” Id. at *21. The court thus held that “[d]efendants will be allowed an opportunity to supplement their privilege log.” Id.
Corporations’ lawyers should remind their clients’ employees: (1) when relaying legal advice to those who need it to mention the lawyer who gave the advice, and (2) to explicitly indicate if they are working with another employee to craft a request for legal advice.
