How Overreach Can Sink An In-House Privilege Claim

In-house legal at Dartmouth college was brought up short, when a judge ruled its privilege claim for a trove of in-house communications exceeds the privilege’s “intended purpose.” The plaintiff was a former Dartmouth student who had been expelled by the college, following a disciplinary proceeding that the student claimed violated the college’s own policies. Adding insult to injury, it was the student, handling his own case pro se, who requested the judge’s in camera review of the communications. The judge cited numerous deficiencies in the privilege claim, among them that in-house attorneys had withheld entire email threads, on the grounds they contained a putatively privileged email, and that the college “expected” in-house lawyers to review and comment on all emails on which they were copied, and claimed that policy as grounds for privilege. The judge’s order explicitly notes that the “presence of counsel’s name on a communication does not render that communication privileged.”