In-House Privilege “More Difficult” Says Fed Court

A recent decision from a federal district court in Louisiana provides a “ short but instructive privilege opinion for in-house lawyers,” writes Todd Presnell in his Presnell on Privileges blog. Privilege is more difficult to apply in-house, the court said, in part simply because in-house lawyers are likely to be more entangled with the companies business in a way that does not necessarily constitute giving legal advice. The court also reiterated what’s been called the “primary purpose” test, an important touchstone, but it left a potentially important component of that test unclear. One thing was clear, however. The court reiterated what’s been said in a variety of contexts for some time: Privilege does not apply when documents are sent from one corporate office to another “merely because a copy is also sent to counsel.”