Case: In re Vioxx Products Liability Litigation
Status: Ready, Aim, Fire
Merck attempted to assert attorney-client privilege on over 30,000 documents that were mostly print-outs of internal company e-mails and attachments from in-house counsel. The Court in the Eastern District of Louisiana appointed a Special Master to conduct a review of representative documents over which Merck asserted privilege. The opinion gives a detailed break-down on the attorney-client privilege between in-house counsel and the company. This case raises important issues for in-house counsel and how they communicate with their client - the company.
- When replying to an e-mail that is asking for both legal and non-legal services, in house counsel may only apply the attorney-client privilege to those parts of the response where counsel is "acting as a lawyer."
- Before hitting "reply all" on an e-mail where the recipients are non-lawyers, in house counsel may want to ask if everyone is in need of the legal advice. If not, disseminating advice to those not in need of it can call into question whether the e-mail has a primary legal purpose.
- In-house counsel edits of documents that are not clearly primarily legal in nature may not be protected from discovery.
- Legally-related in-house counsel edits to documents can lose their privileged status if they are forwarded to non-lawyers in the company for non-legal purposes.
Giving input on business, scientific, promotional and public relations matters is one of the many great values in-house counsel provide to their companies. But, when litigation arises, be aware that those communications may not rise to the level of protected attorney-client communications. In-house counsel should always think twice before taking the safety off their e-mail's send button.
See In re Vioxx Prods. Liab. Litig., 501 F.Supp.2d 789 (E.D. La. 2007).
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