Assertion of Privilege for Communications With In-House Counsel Requires Proof That Communications Qualify as Legal Advice​

The court granted in part plaintiff's motion for an order allowing it to use documents at trial over which defendant claimed privilege. "[W]ith regards to certain emails, [defendant] did not identify to the court, through its privilege log or otherwise, the employer of, or status as an attorney for [defendant] of, all of the individuals who made, or received copies of, these communications. [Defendant] did not show that the underlying facts in those emails or the emails themselves concerned a subject matter on which attorney’s advice was sought by [defendant]. To the extent that these may be communications among [defendant's] employees that were authorized to act on the legal advice — which is not clear to the court — [defendant] has not demonstrated that these communications qualify as legal advice rather than more generally relate to business decisions concerning finances or sales of products, etc. In today’s corporate environment, in-house legal counsel is often asked for input on and provides advice related to business decisions. Therefore, while [a recipient] may be an attorney, [defendant] has not met its burden to prove that these communications are privileged."

Barry v. Medtronic, Inc., 1-14-cv-00104 (TXED October 31, 2016, Order) (Clark, USDJ)