Did the Court Get this Decision Right? Copying to Attorney Does NOT Make an Email Privileged

Thursday, August 28, 2014

A recent federal court decision appears to attempt to limit the application of the attorney-client privilege to email communications. Should sensitive emails between management personnel in anticipation of potential litigation against a “problem” employee, appropriately copied to the company’s in-house attorney, be protected by attorney-client privilege? HELD- NO! Although the court held that emails directly addressed to the attorney seeking legal advice were protected, emails between the co-workers regarding the employee’s misconduct were not protected by privilege or work product, even though the purpose of the emails was to build a file for potential litigation. You can read a full discussion of the case here: Hamdan- Copying Attorney not Sufficient to Protect

Do you think the court got this decision right? Or does it ignore the modern reality of workplace communication being dominated by emails? Going forward, how can supervisors document their concerns and discuss alternatives without subjecting themselves to discovery requests from plaintiffs?

These concerns and questions highlight the value of involving the Maitland & English Law Firm early in your business or personal legal needs. Many times a few minutes speaking with us can save you many hours of headaches. Let us help you avoid potential pitfalls! Thanks, Rob Maitland