September 13, 2017 (PRIVILEGE POINT)
"Remember the Nitty-Gritty of Privilege Analyses: Part I"
Although attorney-client privilege claims often involve thorny legal issues, at some point a human being (usually a judge) may have to read the withheld documents and make privilege calls. In fact, judges must read withheld documents if they cannot make some global rulings based on privilege logs. Unfortunately, withheld documents now consist primarily of emails (1) whose increasing volume understandably tempts judges to primarily look for explicit privileged content on the face of the emails, and (2) whose cryptic nature make that task very difficult.
In United States v. Owensboro Dermatology Associates, P.S.C., the judge "completed a thorough in camera review" of withheld emails, and found that "each document predominantly involves legal advice." Civ. A. No. 4:16-mc-00003- to -00005-JHM, 2017 U.S. Dist. LEXIS 105099, at *16-17 (W.D. Ky. July 7, 2017). Several days later, the judge in Nalco Co. v. Baker Hughes Inc., Civ. A. No. 4:09-CV-1885, 2017 U.S. Dist. LEXIS 111127, at *8 (S.D. Tex. July 18, 2017), similarly upheld a privilege claim for an email between two employees, in which one referred to "a specific request he made for legal advice to an attorney."
Lawyers should remind their clients to (1) be careful what they write, because even a successful privilege assertion often will involve the judge reading the withheld document, (2) discipline themselves to state on the face of their emails when they are seeking legal advice (not just add a "privilege" header). Next week's Privilege Point will address a case in which in camera review dealt with a more subtle issue.