Is an Email CC’d to Non-Parties Protected by Attorney-Client Privilege?
In a case alleging employment discrimination, Ewald v. Royal Norwegian Embassy, Case No. 11-cv-2116 (SRN/SER)(D.Minn. March 7, 2014), a redacted email caused a dispute over attorney-client privilege. The Defendant Embassy contended that a redacted email was subject to privilege as it contained a “discussion of legal advice.” Plaintiff Ewald alleged that the mere assertion that the redaction was a discussion of legal advice is not sufficient to allege privilege, the email was neither sent nor received by an attorney, and furthermore, any purported privilege was waived.
Plaintiff pointed out the email was sent from the Deputy Chief of Mission at the Embassy to the person responsible for coordinating between the embassy and the steering committee that funded Plaintiff’s employment position. Additionally, there were eight people cc’d: all of them were high-level employees at the embassy.
After producing a privilege log, the embassy inadvertently sent another document that had the portion of the email that was not redacted. At the hearing regarding Defendant’s Motion for Summary Judgment, plaintiff trial attorneys read the redacted portion out loud and into the court record. Defendant moved for sanctions under Rule 26.
The magistrate judge wrote a very thorough legal analysis as to whether the email was protected under attorney-client privilege. As the first redaction was simply to say they engaged an attorney, and the second redaction was one of five bullet points (the other four were not redacted), nothing about the statements suggested it was a communication between attorneys and clients. Further, the Embassy failed to show the privilege attached to communications between employees, and even if it had, it failed to meet the burden that privilege was not waived when sent to eight additional third parties.
So the email was not protected by privilege. But what about the Motion for Sanctions, as counsel for plaintiff read disputed emails into the record before the issue was decided? There are additional Motions for Sanctions for loss of ESI in this case. The magistrate pointed out that attorney fees in this case were over one million each, and the amount in controversy was only $100,000. Did this color his decision regarding sanctions under the proportionality concept of Rule 26? The issue of sanctions in this case will be the subject of our next post.