I recently noted the decision of Telstra v Minister for Communications disallowing Telstra’s claim of privilege for certain communications by its in-house lawyers because it could not be shown the lawyers were acting independent of management.

What would be the situation regarding e-mails and attachments between in-house lawyers and non-legal personnel addressed to both lawyers and non-lawyers for review, comment and approval?

The US decision in  In re Vioxx Prods. Liab. Litig. is the subject of a Litigation Alert (pdf) by Hogan & Hartson (via Stephen Warne). Here’s some key points:

• After the pain drug Vioxx was pulled from the market in 2004 due to concerns that it caused an increased risk of heart attacks and strokes, the drug’s manufacturer, Merck, was flooded with lawsuits.
• Merck’s claimed privilege over approximately 500,000 pages of documents, primarily e-mails and attachments between Merck in-house attorneys and non-legal personnel.
• The Court decided that e-mails “addressed to both lawyers and non-lawyers for review, comment, and approval,” and any attachments are not privileged since the primary purpose of the request is “not to obtain legal assistance since the same [advice] was being sought from all.”
• Such a communication could be considered a request for legal advice with a notification to the non-lawyer recipients of the advice sought, but the burden of establishing this is on the proponent of the privilege.
• Documents sent to an attorney for legal advice do not remain privileged if later circulated to other company personnel for non-legal purposes unless the purpose was to apprise them of the legal advice sought and received.
• Parties cannot claim an entire e-mail thread is privileged. They must prove that each thread is privileged unless the entirety of the e-mail chain is integrated into a communication made only to an attorney for legal advice.

As ediscovery becomes a routine litigation procedure in Australia, this issue will arise for consideration here.