The protections available in terms of attorney-client privilege often depend on the type of content found in the communications. Because of this fact, privilege logs almost never play a dispositive role in case analyses that courts perform.
But occasionally, the adversary in the case will point to the data regarding “recipients” and “author” in a message to challenge a privilege claim, pointing out that the lawyer’s name is not present in either field. In these situations, does attorney-client privilege still extend to these communications if the attorney is not explicitly mentioned as a recipient or author of a message?
Recent rulings provide clarification
Courts do, in fact, believe employee-to-employee communications also deserve protection, even in the absence of a named attorney. In one 2015 case, Stryker Corp v. Ridgeway, the court completely rejected an argument by the defendant that the lack of a lawyer’s involvement in communications from the plaintiff meant privilege did not apply to the case.
The court explained its decision by stating that in the context of a corporate environment, privilege applies to any communications of any corporate employee on topics within the overall sphere and scope of that employee’s corporate duties, whenever that employee knows the information is specifically being provided to enable the corporation to obtain legal counsel.
On the very same day the Stryker decision was handed down, another court rejected a corporation’s privilege claim in Roberts Tech Grp., Inc. v Curwood, Inc, but also ruled that privilege can protect certain communications that reflect the counsel’s part in any legal-related decisions.
For more information and legal guidance related to privilege in communications, consult the experienced Dallas attorneys at Whistleblower Law for Managers.
