In Phillips v. C.R. Bard, Inc., No. 12-0344 (D. Nev. Mar. 29, 2013), the court discussed the factors that should be considered when asserting privilege over corporate communications that have dual business and legal purposes, particularly with respect to communications with in-house counsel. A dual purpose communication will be privileged if the “primary purpose” of the communication was to obtain or give legal advice. In order to make this determination, the court will consider the facts surrounding the creation of the document, and whether the legal purpose “so permeates the non-legal purpose” that the two purposes cannot be discretely separated from the “factual nexus as a whole.” The court will also consider the breadth of the recipient list in assessing the centrality of potential legal advice generated by the communication and whether the communication explicitly sought legal advice and comment. The court rejected the approach taken by some courts that a document cannot be primarily for a legal purpose simply because it has been sent to both lawyers and non-lawyers for simultaneous review. However, “the court agrees that merely copying or ‘cc-ing’ legal counsel, in and of itself, is not enough to trigger the attorney-client privilege.”
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Factors to consider where communications have dual business and legal purposes
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