In Spread Enterprises, Inc. v. First Data Merchant Services Corp., No. 11-4743 (E.D.N.Y. Feb. 19, 2013), the district court held that documents on which in-house counsel was copied were not privileged. In this case, one of First Data’s executives sent an email to another executive, informing him that certain of their merchants claimed that they were being overcharged and stating that “a business decision needs to be made.” First Data did not dispute that this email was not privileged. However, they asserted privilege over a series of subsequent emails among First Data’s business people that were copied to in-house counsel. The court observed that where in-house counsel is involved, a party must make a clear showing that the communications were sent to in-house counsel for the purpose of obtaining legal advice. Communications that seek or involve principally the performance by the attorney of non-legal functions are not privileged. “[T]he mere fact that a communication is made directly to an attorney, or an attorney is copied on a memorandum, does not mean that the communication is necessarily privileged.” Here, there was no evidence that the emails were copied to in-house counsel to obtain legal advice, and the initial email between the executives made it clear that the company was making a “business decision.” The emails, therefore, were not privileged.
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Merely copying counsel on business communication does not make it privileged
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