Can Emails Constitute a Special Class of Privileged eDiscovery?
Every lawyer must have a fundamental understanding of the attorney-client privilege and the work-product doctrine. This understanding can become muddied in the world of electronically stored information (ESI) and emails. A pertinent question is whether or not privilege would attach to any email that is sent to counsel? What if the email chain did not anticipate litigation, but was still sent to counsel? These are some of the issues that the court considered in John W. Lee, III, v. Chicago Youth Centers; and J. Harry Wells, No. 12 C 9245 (N.D. Ill. June 10, 2014).
In the case at hand, Plaintiff filed an employment discrimination action against Chicago Youth Centers (“CYC”). Plaintiff sought to compel Defendant to produce certain documents, including his personnel file and a plan of reorganization for Defendant, that was attached to emails exchanged between Defendant employee J. Harry Wells and Defendant’s previous counsel, Dia Morgan of the Chicago firm of Roger B. Derstine, Chartered. Defendant’s claim was that the documents were immune from discovery under the attorney-client privilege and further, that the work-product doctrine applied to the emails and their attachments, despite the fact that the emails did not pertain to future litigation or seek legal advice.
The court, in looking at these factors, asserted that “merely communicating with a lawyer or copying a lawyer on an otherwise non-privileged communication, will not transform the non-privileged communication or attachment into a privileged one. And that is so even if the otherwise non-privileged communication was at the behest of the lawyer.” Bell Microproducts, Inc. v. Relational Funding Corp., 2002 WL 31133195 (N.D. Ill. 2002). Further, if Plaintiff’s personnel file and certain email attachments were not prepared by or at the behest of an attorney, let alone in the anticipation of litigation, then by definition there can be no work-product protection applied to those documents.
In regards to plaintiffs cases nationwide, and the objections to proper discovery requests that plaintiffs can be subjected to, it is important to note that simply putting otherwise non-privileged business records and emails in the hands of any attorney will not render the documents privileged or work-product.
Did you know: With the world now producing 2.5 quintillion bytes of data daily, 90% of all data has been created in the last two years.