By Joshua D. Sussman, Esq.
Email is now the preferred means of communication in the business world. Both within an organization, and between the organization and its third-party vendors, customers and others, virtually everyone emails. Sometimes, those communications are sent without much forethought. Not unexpectedly, a business’s email files have become a treasure trove for far-reaching and intrusive discovery in virtually any lawsuit or arbitration. It is not unusual for the proverbial “smoking gun” pivotal evidence to be found within one brief, spontaneous email communication from among terabytes of digital material.
In response, some companies have adopted creative strategies to attempt to shield their routine emails from discovery production. One such example is highlighted by a recent antirust case that the U.S. Department of Justice commenced against Alphabet, Inc. and Google LLC, and raises the interesting legal issue of whether routine emails can be shielded from discovery simply by copying or “cc’ing” a lawyer.
Generally speaking, the attorney-client privilege protects certain communications between a lawyer and their client that concern legal advice from being produced during discovery. However, can merely copying in-house general counsel on emails shield them from discovery production under the attorney-client privilege?
A federal court Judge considered this issue in the context of a motion to sanction Google and to compel it to produce emails withheld on attorney-client privilege grounds under its “Communicate with Care” program, which advised employees to add a lawyer as a recipient to emails. The DOJ argued that Google implemented the program so that it could assert the attorney-client privilege over those emails, thus shielding them from disclosure to an adverse party in a lawsuit even though the attorneys did not participate in the communications. The Court ordered Google to produce a random sample of emails for the Judge to review and inspect to determine whether Google properly asserted the privilege.
The U.S. Department of Justice argued it does not, and there is precedent to support their position. In Boca Investerings Partnership v. United States, 31 F.Supp.2d 9, 11 (D.D.C. 1998), the Court held that before the privilege applies it must determine whether the attorney was acting primarily in a professional legal capacity. If the attorney is being consulted on business decisions, those communications may not be privileged. Ultimately, “[a] court must examine the circumstances to determine whether the lawyer was acting as a lawyer rather than as business advisor or management decision-maker.” Id.
After the Court’s inspection of the sample, the Court denied the DOJ’s motion to compel and for sanctions, but directed Google to re-review the remaining “silent-attorney emails” to determine whether are protected from disclosure. The transcript containing the Court’s decision is not yet available, but by denying the motion, the Court apparently found that sample contained emails where employees were seeking legal advice. If the Court had granted the DOJ’s motion and found that attorney-client privilege did not apply to the withheld emails, then the Court could have forced Google to produce some or all of the emails it sought to protect.
In the immortal words of coach Herm Edwards: “Don’t press send!” And if you are going to, think twice before you do, because once that email or text message is sent it may become the subject of litigation.
Should you need the assistance of skilled and experienced counsel to assist you in litigation, do not hesitate to contact Joshua Sussman at email@example.com.