The attorney-client privilege protects clients' communication of facts to their lawyers and requests for legal advice about those facts. Not surprisingly, busy courts dealing with the mounting volume of withheld documents often requiring in camera review frequently look for explicit requests for legal advice on the face of such withheld documents.

In Curtis v. Progressive Northern Insurance Co., Case No. CIV-17-1076-PRW, 2019 U.S. Dist. LEXIS 73461 (W.D. Okla. May 1, 2019), the court reviewed in camera several documents defendant had withheld as privileged. Although acknowledging that defendant Progressive's in-house lawyer received copies of several emails, the court rejected defendant's privilege claim – noting that "[n]either email evinces a request for legal advice." Id. at *7. The court reached a similar conclusion about other emails, noting that the emails "again do not seek legal advice or strategy" and that "the decisions mentioned in the emails reflect those made by non-legal Progressive employees and do not reference any legal advice or strategy provided." Id. at *10.

This understandable but frequently frustrating judicial approach should prompt corporations' lawyers to remind their clients to explicitly ask for legal advice on the face of communications to the corporations' lawyers when that is their goal.