Attorney-Client Privilege and Email

From Rorar v State & Fed. Commc’ns, Inc., 2010 U.S. Dist. LEXIS 36121 (N.D. Ohio April 13, 2010):

Attorney-Client Privilege As Applied to the E-mail Communications

E-mails add complexity to the already difficult analysis of the application of the attorney-client privilege. See Thompson v. Chertoff, No. 3:06-CV-004 RLM, 2007 U.S. Dist. LEXIS 85221, 2007 WL 4125770, at *2 (N.D.Ind. Nov. 15, 2007). E-mail chains can span over several days and involve 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. Id. (citing Muro v. Target Corp., 243 F.R.D. 301, 305 n. 4 (N.D. Ill.2007)); see generally Upjohn v. United States, 449 U.S. 383, 395-96, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981) ("The client cannot be compelled to answer the question 'What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.").

The attorney-client privilege does not protect against discovery of the underlying facts contained in an attorney-client communication. Upjohn, 449 U.S. at 395-96 (noting that non-privileged documents do not become privileged solely by virtue of being transmitted to counsel). "[I]t is clear that when an attorney conveys to his client facts acquired from other persons or sources, those facts are not privileged." Antoine, 66 F.3d at 110; see also Minebea Co., Ltd v. Papst, 228 F.R.D. 13, 19 (D.D.C. 2005); Kansas Wastewater, Inc. v. Alliant Techsystems, 217 F.R.D. 525, 528 (D.C. Kan. 2003) (finding privilege does not apply to facts that an attorney communicates to her client); United States v. Savage, 819 F.2d 1139 (4th Cir. 1987) (finding the privilege does not protect an attorney's statements to his client when the attorney is only acting as a conduit). Unless the document itself is protected under another privilege, transfer by a client to an attorney of an independent or pre-existing document (such as business records, letters, memos, e-mails, or other items from the client's business or business files) that was not created for or because of (or that do not arise out of) the attorney-client relationship or consultation, does not bring the document within the attorney-client privilege. Such a document is regarded as existing independently of the relationship and not as communications made pursuant to it.

Confidential e-mails from a client to his attorney attaching a pre-existing unprivileged e-mail may, nevertheless, be protected. "[T]he very fact that non-privileged information was communicated to an attorney may itself be privileged, even if that underlying information remains unprotected . . . . [E]ven though one e-mail is not privileged, a second e-mail forwarding [it] to counsel might be privileged in its entirety [including (apparently) the attachment as attachment]. [It] is similar to prior conversations or documents that are quoted verbatim in a letter to a party's attorney." Barton v. Zimmer Inc., 2008 U.S. Dist. LEXIS 1296, 2008 WL 80647 *5 (N.D. Ind. 2008).

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