In-House Privilege Claim Stumbles Before Skeptical Judge

A magistrate judge had a stern message for lawyers from Adidas and to in-house lawyers generally, as he denied a claim of privilege for certain in-house attorney emails in a breach of contract/IP case in the Eastern District of New York. The message, as explained by Todd Presnell in his Presnell on Privilege blog, is that companies “cannot rely on conclusory statements or ipse dixit arguments to persuade a federal court that the privilege protects an in-house lawyer’s emails from discovery.” The Latin is right out of the court order itself, which notes that Adidas bore the burden of making the case for privilege but it didn’t, instead relying on “conclusory or ipse dixit assertions.” The court took its own close look at the emails in question, said that on that “on their face” they didn’t appear to be privileged, and then it made a number of observations that could be considered, as Presnell writes, “a Privilege 101 for In-House Lawyers.”