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Court Rejects Defendant’s Privilege Claims and Orders Production of Emails Between Non-Attorney Employees

Posted on September 11th, 2015

In Cicon v. State Farm Mutual Auto Ins. Co., Case No. 14-2187 (M.D. Pa. Aug. 21, 2015), Plaintiff sued Defendant insurance company regarding coverage of Plaintiff’s injuries in an automobile accident. The Middle District of Pennsylvania considered Plaintiff’s challenges to particular entries on Defendant’s privilege log.

Defendant asserted the attorney/client privilege and the work product privilege over certain email communications between its counsel and its employees as well as emails among its employees regarding the case. The court held upheld Defendant’s privilege assertion regarding emails that included counsel, including ones sent before Plaintiff filed the lawsuit and before Defendant formally retained counsel in the litigation. The court disagreed with Defendant’s privilege assertions regarding inter-office email communications between Defendant’s non-attorney employees before Defendant officially retained counsel, finding that the emails occurred in the ordinary course of business and did not qualify as privileged or work product. The court ordered Defendant to produce these emails, although the court allowed Defendant to redact “explicit discussion” regarding attorney’s advice.

Plaintiff’s attorneys are well advised to take a close look at Defendant’s privilege logs, especially with respect to email communications that do not include counsel as an addressee or recipient.

ILS – Plaintiff ESI Experts

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