Two Courts Address The Greatest Risks to Internal Corporate Communications' Privilege Protection: Part II

Last week’s Privilege Point described the illogical but scary Vioxx doctrine, which some courts apply to deny privilege protection ab initio to intra-corporate communications simultaneously seeking advice both from lawyers and non-lawyers. Another more widely articulated standard also risks privilege protection for internal corporate communications.

In Smith v. Augusta-Richmond County, the court explained that the privilege only protects internal communications among those employees who “have a need to know in the scope of corporate responsibilities.” No. CV 122-149, 2024 U.S. Dist. LEXIS 4681, at *6 (S.D. Ga. Jan. 9, 2024) (citation omitted). The “need to know” standard applies a waiver analysis for internal corporate communications. This makes little sense, because it might force corporations to disclose internal communications to litigation adversaries simply because a few extra corporate employees received the communication (all of whom of course have confidentiality duties themselves).

Unlike the Vioxx doctrine described in last week’s Privilege Point, this “need to know” standard normally appears in courts’ introductory general description of corporations’ privilege standards. Only a few courts seem to have stripped away a corporation’s privilege based on the “need to know” standard. But wise lawyers warn their corporate clients about this second danger too.

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