In Oracle America, Inc. v. Google, Inc., No. 10-03561 (N.D. Cal. Oct. 20, 2011), the district court affirmed the magistrate judge’s ruling (see 2011 WL 3794892 (N.D. Cal. Aug. 26, 2011)), holding that an email copied to an in-house lawyer was not privileged. Just prior to the initiation of this litigation, a Google software engineer sent an email to a company Vice President, which copied an in-house attorney, and included two headings: “Attorney Work Product” and “Google Confidential.” Google’s computer system saved not only the final email, but eight drafts of the email that were automatically captured while the engineer composed the email. Only the final version contained the privilege/confidentiality headings. During discovery, Google’s privilege filter did not capture the eight drafts, which were produced to Oracle. Google clawed back the documents pursuant to a protective order, but Oracle moved to compel production on the grounds that the email was not privileged. The magistrate judge held, and the district court affirmed, that the email reflected a business communication, not a legal one. Among other things, there was no clear showing that the email was related to an internal legal investigation, or that the email was for the purpose of obtaining legal advice. In-house counsel’s assertions of privilege are subject to heightened scrutiny, and the privilege will not apply unless there is a clear showing that in-house counsel was acting in a legal, rather than a business, capacity. The court here found that the email appeared to relate to business negotiations and not legal issues, and held that merely adding an attorney to the distribution list did not confer privilege upon an otherwise non-privileged document.