Do Emails Comprise a Special Class of Privileged eDiscovery Documents?

A pertinent question is whether the attorney-client privilege and/or work product doctrine can attach to any email that is sent to counsel? This is one of the issues that the court looked at in John W. Lee, III, v. Chicago Youth Centers; and Harry Wells, No. 12 C 9245 (N.D. Ill. June 10, 2014).

The case at hand centered on an employment discrimination suit against Defendants. Plaintiff sought to compel Defendants to produce certain documents, including his personnel files, that were attached to emails exchanged between Defendants and their previous legal counsel.

Defendants claimed that the documents were immune from discovery under the attorney-client privilege, and alternatively, that the work-product doctrine applied to the documents.

The court stated 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.”

The court also mentioned that personnel files and certain email attachments that are not prepared by or at the behest of an attorney, let alone in the anticipation of litigation, cannot have the work-product doctrine applied to them.

ILS – Plaintiff eDiscovery Experts