In-House Counsel Alert


Executive Emails Could Be Discoverable Despite Including In-House Counsel

Key Takeaway:  Sending an email to in-house counsel is not sufficient to create the attorney-client privilege unless the sender specifically seeks legal advice. Apple learned this lesson the hard way.

Although the attorney-client privilege is generally viewed as sacred by the legal community, its application could vary depending on the status of the attorneys involved. Merely sending an email to in-house counsel is not sufficient to create the attorney-client privilege unless the sender specifically seeks legal advice. Apple learned this lesson the hard way.

Apple’s Inadvertent Mistake:
In a suit by a video game developer, Epic Games, against Apple for alleged antitrust violations, a California magistrate judge put the attorney-client privilege in the spotlight by overruling Apple’s claim that certain documents and communications involving Apple executives and in-house attorneys were protected from disclosure.[1] As part of voluminous document production, Apple inadvertently disclosed a handful of supposedly privileged documents. Although Apple promptly clawed the documents back, Epic Games challenged the clawback. Epic Games argued that executive emails, which included Apple in-house attorneys among the passive recipients, and a draft presentation produced from executive business files were not privileged.

The Ruling:
The magistrate judge sided with Epic Games. After examining the emails at issue in camera to determine whether they had been sent for the purpose of seeking legal advice, the magistrate judge concluded that the emails involved purely business discussions where non-attorneys sought answers from each other rather than from in-house counsel. The magistrate judge observed that a widespread business practice of including lawyers in an email chain was an example of “the incorrect belief” that merely doing so rendered the emails privileged.

Contemporaneous meetings and conversations involving in-house attorneys regarding the subject matter of the emails would be privileged. However, the emails themselves, which did not contain any information about legal advice rendered during those meetings and conversations, were not privileged. Similarly, the magistrate judge declined to rule the draft presentation privileged. The fact that the draft presentation was “reviewed and revised” by in-house attorneys was insufficient to trigger the application of the attorney-client privilege. Not only was the draft presentation not a “communication,” it did not contain any edits from which a reader could determine what legal advice was provided.   

Preserving the Privilege:
The magistrate judge’s decision underscores the duality of in-house counsel’s role and how it could affect the discoverability of documents and communications thought to be privileged. In addition to handling legal matters, in-house counsel often perform a variety of business functions, thereby blurring the line between communications that qualify as legal advice and communications that are purely business-related. The magistrate judge’s order inferentially offers some insight concerning how in-house counsel and businesspeople can preserve, and maximize the protections of, the attorney-client privilege.

For instance, one way to ensure the email communications involving in-house counsel are protected is to specify that the purpose of the email is to request and obtain in-house counsel’s legal advice concerning the subject matter of the email. Draft business documents, although not communications, could be protected by the attorney-client privilege if they are redlined to reflect legal advice or oral discussions providing legal advice and included in the email communications between in-house counsel and employees involved in the drafting of business documents.

Overall, the magistrate judge’s order makes it clear: in-house counsel cannot simply be a passive recipient of email communications, from whom the company’s employees expect no input. Participation in the email communications by in-house counsel wearing her “attorney hat” is needed for the emails to be deemed privileged.   

[1] The case is styled Epic Games, Inc. v. Apple Inc., Case No. 4:20-cv-05640, pending in the United States District Court for the Northern District of California. The discovery order [Docket No. 512] was issued on April 28, 2021, in connection with the parties’ joint discovery letter brief [Docket No. 493].

This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.