Crane on Law by James Crane

I have been involved with many debates among attorneys representing corporate defendants about the best way to represent e-mail conversations on a privilege log. Effective corporate counsel will recognize that entries on a privilege log must be detailed and consistent enough to withstand the scrutiny of opposing counsel and the bench. The real question surrounds how particular material should be treated, for example, when a communication originally is not privileged, but subsequent discussion in the e-mail thread invokes a claim for privilege. There is authority that requires itemization of each separate e-mail within a thread. Just recently, however, the Northern District Court of Illinois had a different interpretation of FRCP 26(b)(5)(A).

In Muro v. Target Corp., “Muro II” (N.D. Ill. Nov. 2, 2007), the District Court overruled a magistrate judge’s decision that defendants waived privilege on documents in an “inadequate” privilege log because they did not list separate entries for every e-mail within an e-mail thread. The Court stated that it understood Upjohn Co. v. United States (449 U.S. 383 (1981)), “to mean that even though one e-mail is not privileged, a second e-mail which forwards that prior e-mail to counsel might be privileged in its entirety.”

The end result is that the Muro Court supports the position that a party can withhold an e-mail forwarding material to counsel as well as the forwarded material that would not have a claim for privilege on its own. Part of the reasoning is that the otherwise not-privileged material will be disclosed separately in the data population. I, for one, support this holding wholeheartedly. A client that takes a document to counsel for review, should be presumed to be seeking legal advice, and should not have to disclose the details surrounding such a request.