You recently learn that one of your employees is engaging in misconduct. You prepare an email detailing the employee’s bad behavior and decide to copy your in-house counsel. Have you protected this email from disclosure by copying your attorney?
The Southern District of Indiana recently answered that question in the negative, and concluded that an email cannot be transformed into a privileged communication simply by copying an attorney. Hamdan v. Indiana University Health North, LLC, et. al., Case No.: 1:13-cv-00195-WTL-MJD, June 24, 2014.
In Hamdan, the employer refused to turn over several email chains in response to a discovery request sent by a former employee. The employer argued that the email exchanges were protected under the attorney-client and/or attorney work-product privilege. The former employee disagreed and asked the court to compel the production of the documents.
A review of the communications by the court revealed that the first email chain was a proposal from the employee’s attorney to the employer, which was then forwarded to the in-house attorney for advice on how to respond. The second email chain, between several supervisors, human resources personnel, and other officials, was a discussion of the employee’s behavior, with the employer's in-house attorney copied on the exchange. The last email chain was a request by the former employee to view his personnel file, which was forwarded to the in-house attorney for advice on how to respond.
The court concluded that the first and third email chains were protected by the attorney-client privilege and did not need to be produced. In both of these communications, it was obvious from the content that the senders were confidentially seeking legal advice, and the entire communication was related to that purpose. Because the communications were protected by the attorney-client privilege, the court did not need to analyze whether these emails were protected by the attorney work-product privilege.
In distinguishing the second email chain from the first and third, the court noted that the exchange described the details of the former employee’s conduct and merely copied the in-house attorney on the communication. While the attorney-client privilege protects confidential communications that are sent for the purpose of securing legal advice, the court emphasized that the email was neither addressed to the in-house attorney, nor sent directly to the attorney. In fact, the only direct communication to the attorney was a reminder about a meeting. The sender of the email was not seeking legal advice. Because the email contained only facts that were shared with the attorney, which are not protected by the attorney-client privilege, the communication was not protected and was subject to disclosure.
Turning to work-product privilege, the court reached the same conclusion. In this analysis, the court rejected the employer’s arguments that the emails were prepared in anticipation of litigation. As the court explained, the emails were neither work performed by the attorney, nor work prepared at the direction of the attorney. Furthermore, nothing in the email exchange included the mental impressions or the thought processes of the attorney, and the exchange between the non-attorney employees would have occurred regardless of the attorney’s inclusion on the email. Therefore, the attorney work-product privilege was inapplicable, and the court granted the former employee’s motion to compel as it related to the second email.
The takeaway for employers is to remember that simply copying your attorney on an email will not shield its disclosure during discovery. On the other hand, an email directed to your attorney requesting legal advice will be protected, and so will an email that contains work-product prepared by an attorney, or at the direction of your attorney, in anticipation of litigation.