Applying Pennsylvania law, a court ruled that the defendant corporation had properly withheld certain documents sought in discovery under the attorney-client privilege. Before turning to the specific documents in issue, the court ruled that (i) if a communication is made to in-house counsel “primarily” for the purpose of gaining or providing legal assistance,then the privilege applies, and (ii) communications with a subordinate of an attorney are privileged if the subordinate is acting as the attorney’s agent in connection with communications otherwise covered by the privilege.
After conducting an in camera review of the documents in issue—mainly redacted emails in chains of emails that were otherwise produced—the court ruled that all documents were entitled to protection. For example, among the ten or so documents in issue, the court sustained the privilege claim over an email that a paralegal sent at the direction of defendant’s in-house counsel to executives intimately involved with negotiating the contract at issue in the litigation. The email set forth proposed contract language and sought feedback. The court ruled that disclosure of the email would reveal client communications and legal advice that was incorporated into the proposed contract language. Two other emails withheld as privileged consisted of (i) an email that a non-lawyer executive working on the contract at issue sent to other non-lawyer employees working on the deal on which in-house counsel was “cc’d,” and (ii) a reply to the sender of the first email that was “cc’d” to in-house counsel. The court rejected the plaintiff’s argument that these emails were instances in which a privilege was sought to be manufactured by merely copying an attorney on emails between executives. To the contrary, the court found that because the business people were communicating with each other and in-house counsel to relay legal advice and seek additional guidance on contract terms, the communications were privileged. (Southeastern Pennsylvania Transportation Authority v. CaremarkPCS Health L.P. 2008 WL 5170169 (E.D.Pa. 2008))