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Privilege Rejected For In-House Lawyer’s Spreadsheet

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February 4, 2021

A Marathon Oil Company in-house lawyer asked a business manager for information related to the company’s producing wells in Oklahoma, and then recorded that information in the form of a spread sheet. Years later, plaintiffs in a class action brought by parties that had a royalty interest in the wells wanted to see that spreadsheet, and the company claimed privilege. A magistrate judge, invoking a widely accepted “heightened scrutiny” standard – one that presupposes a likelihood that internal communications with in-house legal pertain to “business” and not legal matters – rejected the privilege claim. The federal court judge noted that Oklahoma has not adopted a heightened-scrutiny standard or applied a rebuttable presumption that in-house lawyers’ internal communications are more business than legal – but then he agreed with the magistrate’s conclusion. It didn’t take “heightened scrutiny,” he suggested, to conclude this spread sheet was not privileged.

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