From Barton v. Zimmer Inc., 2008 U.S. Dist. LEXIS 1296 (N.D. Ind. Jan. 7, 2008) (citations omitted):
1. “E-mails, with sometimes different and multiple recipients and authors, add complexity to the analysis of the attorney-client privilege.... ‘Email strands can span over several days, and they may have many different recipients and authors.’ ... Moreover, some e-mails in which counsel are involved may contain factual information, which is not protected by the privilege, while others within the same strand may contain exclusively legal advice.”
2. “Nevertheless, under Upjohn, 449 U.S. at 395-96, the very fact that non-privileged information was communicated to an attorney may itself be privileged, even if that underlying information remains unprotected.”
3. “As applied to e-mails, this means that even though one e-mail is not privileged, a second e-mail forwarding the prior e-mail to counsel might be privileged in its entirety.... ‘In this respect, the forwarded material is similar to prior conversations or documents that are quoted verbatim in a letter to a party's attorney.’"
Nevertheless, the transmitted email will have to be produced in some form. If it were not, that would raise serious spoliation issues.
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