Privilege logs, which generally list the authors and recipients of withheld communications, are frequently cited in challenges to a corporation’s privilege claims when they show that no lawyer sent or received a withheld document. Corporations normally win those disputes by showing that an employee who received legal advice relayed it to another employee who needed it. There is, however, another scenario in which the privilege can protect communications not involving a lawyer. In Crabtree v. Experian Information Solutions, Inc., the Northern District of Illinois recently held that communications between a company’s non-lawyer employees was privileged where the employees gathered information to assist counsel rendering legal advice and those facts were channeled to counsel to aid in the provision of legal services. In essence, company lawyers had deputized employees to gather facts the lawyers needed. Wise in-house and outside counsel will, of course, memorialize such deputization.
Published January 14, 2018.