In Equal Employment Opportunity Commission v. BDO USA, L.L.P., 856 F.3d 356 (5th Cir. 2017) (No. 16-20314), the Fifth Circuit ruled that the magistrate judge and the district court erred by placing the burden on the requesting party to demonstrate that in-house counsel was not acting in a legal capacity rather than the proper legal standard, which requires in-house counsel to demonstrate that they acted in a legal capacity with regard to withheld communications. In this case, the EEOC conducted an employment discrimination investigation in response to complaints made by a former BDO employee who had acted as a discrimination investigator for the company. In response to an EEOC subpoena, BDO withheld 248 documents, and provided a privilege log. The EEOC challenged the sufficiency of the log with respect to, among other things, communications between BDO in-house counsel and other BDO employees. In denying the EEOC’s motion to compel and for an in camera review, the Magistrate Judge found the log sufficient on the grounds, among others, that “anything that comes out of [BDO’s] lawyer’s mouth is legal advice,” and that the EEOC had failed to make a “sufficient showing” that the log reflected “an improperly claimed privilege”. The district court affirmed. The appellate court vacated and remanded. The appellate court held that the lower courts had applied the wrong legal standard. The initial burden to establish the elements of privilege is borne by the party asserting privilege, and only after the initial burden is met does the burden shift to the requesting party to demonstrate inadequate assertion of privilege. The lower courts also erred by applying a legal assumption that any communication with in-house counsel is per se privileged. The appellate court held that, where communications with in-house counsel are at issue, there is no presumption that the communications are privileged. The appellate court found that BDO did not meet its burden to establish privilege and remanded the matter with direction to apply the proper legal standards. The appellate court noted that in camera review would likely be necessary given the facts of the case.