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CC: Legal

By Stella T. Oyalabu and David A. Michel 

October 10, 2022

in-house counsel communications

Stella T. Oyalabu is an associate in Sherin and Lodgen’s Litigation Department, and represents clients in complex business, employment, professional liability and real estate disputes. She previously clerked at the Massachusetts Appeals Court for Associate Justice Gabrielle Wolohojian. stoyalabu@sherin.com

David A. Michel is a partner in Sherin and Lodgen’s Litigation Department, where he assists clients in resolving complex business, real estate, construction and employment disputes. His experience includes representing companies in a variety of complex civil and commercial disputes in federal and state court and through alternative dispute resolution. damichel@sherin.com

The Eastern District of Louisiana’s recent decision in Slocum et al. v. International Paper Company et al. highlights a common problem corporations and corporate counsel face. Employees often copy the legal team on all emails assuming such communications will be privileged, despite no cognizable legal issue being discussed. As the Slocum decision makes clear, merely copying corporate counsel on an email does not render internal corporate communications privileged, especially where the communication’s primary purpose is not to secure legal advice.

Following an eruption of “black liquor,” a noxious by-product of the paper-making process from the Bogalusa Paper Mill, mill owner International Paper Company (IP) issued a press release disclosing a “slight leak” at the mill and “no risk to human health or the environment.”

Within hours, emails circulated among IP employees crafting a draft press release in response to the explosion. The communications at issue were sent from the communications manager to IP’s chief communications leader, IP’s director of global media relations, and two in-house attorneys belonging to IP’s legal department. Specifically, IP’s chief communications leader proposed edits to the press release, and IP’s general counsel replied, “Looks good.” 

The plaintiffs sought in camera review of the emails and permission to use them at deposition and trial. IP claimed that attorney-client privilege protected the emails from the plaintiffs’ use because of the company’s in-house counsel presence on the email chain.

Following in camera review, the Eastern District of Louisiana held that the attorney-client privilege did not apply to the emails because the communication’s primary purpose was public relations, not obtaining legal advice.    

The court recognized that determining the purpose of the internal communications that involve corporate counsel is difficult because in-house counsel have become so interwoven with all aspects of a corporation’s business decisions. This difficulty is compounded by the fact that emails have made it easy to instinctively include counsel on all communications, and carbon copying emails to counsel has in many instances become a regular practice.

IP asserted that the emails sought advice from in-house counsel regarding the legal implications of the proposed press release. IP also contended that the subject line, which stated “PRIVILEGED ATTY CLIENT INFORMATION,” invoked the privilege. Lastly, IP claimed the request for legal advice was implicit and that general counsel’s response, “looks good,” constituted legal advice.

The court rejected IP’s arguments, holding that a corporation cannot claim attorney-client privilege where the emails did not request legal advice nor was there a cognizable legal issue within the exchange, which included a number of non-attorney employees. The court concluded the in-house counsel merely participated in the general business of the corporation, i.e., public relations.

The Slocum decision is a loud warning to businesses and counsel that internal communications may be discoverable despite the inclusion of attorneys, unless the communication’s primary purpose is to obtain legal assistance.

Companies must carefully consider when, why and how to include corporate counsel in email communications. Ideally, consultation with counsel should not be lumped into a broader email chain, but rather should be done separately, and only include employees whose participation is critical for obtaining advice. Where employees seek to understand the legal implications of their actions, any email to counsel should explicitly request legal advice. When in doubt, an employee should pick up the phone instead.

Privilege determinations are complex, multifaceted and fact-specific. Companies should consult with experienced counsel to devise and implement policies reflecting best practices, and then ensure those policies are communicated broadly and followed diligently in order to preserve internal attorney-client privilege to the greatest extent possible.

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