PRIVILEGE PL ACE
To CC or Not to CC: That Is the Privilege Question By TODD PRESNELL
D
oes anyone recall the etymology of the “cc” option in our emails? I do. Before the advent of copying machines, initially known ubiquitously as Xerox machines, lawyers would insert carbon paper between two sheets of paper when typing a letter. When the typewriter keys struck the top sheet, the carbon paper imprinted the letters and words on the bottom sheet to create a copy of the text. Thus, the letter included a “cc,” or “carbon copy.” This cumbersome process necessarily limited the scope and number of persons receiving
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copies. But when the “cc” concept carried over to email communications, its limited scope did not. Today, any corporate employee can easily copy an in-house lawyer on emails where the primary recipient is a non-lawyer. This opportunity creates privilege issues for in-house lawyers. Courts question whether an employee’s email sent to a lawyer as a secondary recipient was truly seeking legal advice. Courts often view emails between two non-lawyer employees copied to in-house counsel as, at best, dual purpose communications. Many judges caution that
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an employee who merely copies an in-house attorney on an email to a non-lawyer colleague does not automatically render the email privileged. Courts scrutinize the putatively privileged communication to determine whether its primary purpose was to secure or dispense legal advice. Sending an email to an in-house lawyer as the primary recipient increases the chances that a judge will find that the purpose was related to legal advice. Sending the email to the in-house lawyer as a “cc” or secondary recipient decreases the chances of privilege. Think about it: How can the BACK TO CONTENTS
