In Exxon Mobil Corp. v. Hill, 751 F.3d 379 (5th Cir. 2014) (No. 13-30830), the court held that communications between a company negotiator and company in-house counsel were legal in nature and therefore were privileged.  As part of its due diligence relating to a potential contract with ITCO, Exxon Mobil commissioned an industrial hygienist to conduct certain tests.  During negotiations, ITCO asked an Exxon non-attorney negotiator, Guidry, for the test results.  Guidry spoke with in-house counsel to determine whether to provide the test results.  In-house counsel advised Guidry to provide a portion of the results, and counsel drafted a suggested response to ITCO, including a disclaimer of any warranty as to the data’s accuracy (referred to in the case as the “Stein Memo”).  The Stein Memo had been inadvertently produced and clawed back in previous litigation, and was introduced in the present case after Exxon had been dismissed as a party.  Exxon was allowed to intervene as a third party to ask the court to strike the Stein Memo from the record and order plaintiff to return or destroy all copies of the memo.  The trial court denied the motion, finding that the memo provided business rather than legal advice and was therefore not privileged.  The appellate court reversed, finding the document was legal and not business in nature.  The court explained that the context of the communication made it clear the purpose of the memo was to provide legal advice:  “Disclosure of material facts is a universal concern in contract law. . . . it is no surprise that Exxon Mobil would seek advice from its attorney as to how to respond.”