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Carbon Copying a Lawyer Does Not Create an Automatic Privileged Communication, U.S. District Court Rules

Posted on June 11th, 2018

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In Texas Brine Co., LLC v. Dow Chem. Co., No 15-1102, 2017 WL 5625812 (E.D. La. Nov. 21, 2017), the Eastern District of Louisiana found that carbon copying (CC) legal counsel does not automatically protect that communication as privileged.

This issue was evaluated by Magistrate Judge Janis van Meerveld when the defendant challenged Plaintiff’s privilege log.  For his review, Magistrate Judge van Meerveld conducted an in-camera review of the email communications in question.

The plaintiff asserted that the attorney-client privilege protected the emails because the sending party CC’ed (i.e., email carbon copied) the plaintiff’s in-house lawyer. The privilege log asserted that these communications were sent to the lawyer in anticipation of possible administrative enforcement actions or lawsuits between adjoining property owner.

Magistrate Judge van Meerveld found that the reasoning too “generic”—citing the claim’s reference to an unspecified legal or regulatory action. The magistrate judge ruled that the privilege log’s claim did not convert a copied email between non-attorneys and the house lawyer into a privileged communication.

In order to claim such an email as privileged communication, the plaintiffs needed to demonstrate that the emails showed legal analysis, sought legal counsel, or implicated a specific legal investigation. Because Plaintiff did not demonstrate this, the court ordered Plaintiff to produce the majority of the emails.

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