Court Agrees that Emails Including Counsel Aren’t Privileged Because They Don’t Offer Legal Advice: eDiscovery Case Law
In Guardiola v. Adams Cty. School District No. 14 et al., No. 1:18-cv-03230-RM-NRN (D.Colo. Oct. 25, 2019), Colorado District Court Judge Raymond P. Moore overruled the defendants’ objection to the magistrate judge’s order compelling them to disclose three e-mails that they contended were subject to the attorney-client privilege, ruling that “[t]he disputed e-mails do not directly request or offer legal advice.”
In this case where the plaintiff claimed wrongful termination because of his association with an organization that the defendants believed was encouraging students to protest against the school board, the parties had a discovery dispute over e-mail concerning the implementation of new security measures at school board meetings in which members of Defendant Adams County School District No. 14 Board of Education and their counsel participated. The magistrate judge reviewed in camera five e-mails from the discussion and then invited briefing on the issue of attorney-client privilege. Both sides filed briefs. The magistrate judge then determined two of the e-mails – one sent by counsel and another responding to it six minutes later – were privileged but the first, second, and portions of the fifth were not.
The magistrate judge found that the sender of the first e-mail was forwarding a security plan proposed by a third-party security provider and seeking input and direction from all the decision-makers, as well as counsel, about implementing it. The magistrate judge determined that the sender’s request was not privileged simply because the attorney was included in the discussion. The magistrate judge found that the sender of the second e-mail was expressing concerns about strategy, perception, and public opinion and that the e-mail was not sent for the purpose of giving or receiving legal advice. And the magistrate judge found that the sender of the fifth e-mail reflected the sender’s decision with respect to the proposed security plan and her reasons for that decision; thus, it was merely a business communication and not privileged. The defendants objected.
Noting that “The privilege ‘protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege’”, Judge Moore stated: “The disputed e-mails do not directly request or offer legal advice. Nor are they necessary to obtain such advice. Instead, the disputed e-mails are part of a broader discussion about increasing security at school board meetings. Although legal considerations are one component of that discussion, the disputed e-mails, on their face, predominantly relate to other issues. The primary purpose of the first e-mail is to address logistical issues raised by a private security provider. The primary purpose of the second e-mail is to share concerns about managing public opinion. And the primary purpose of the fifth e-mail is to announce and explain the decision that was reached. To the extent legal issues are tangentially related to the broader topic of security, that is not enough to bring the content of these e-mails within the attorney-client privilege.”
Noting that “Defendants cite no authority, nor is the Court aware of any, for the proposition that the Court is precluded from assessing the e-mails at face value and based on the context in which they were sent”, Judge Moore stated, in overruling the defendants’ objection: “Defendants have failed to show that the attorney-client privilege applies to the disputed e-mails and that the magistrate judge’s ruling was clearly erroneous or contrary to law.”
So, what do you think? Should emails including counsel always be considered privileged or do they need to include legal advice? Please let us know if any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant.
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