Pushing the Limit: The District of Oregon Concludes that the Attorney-Client Privilege May Apply to Communications Not Involving Attorneys
In Ozgur v. Daimler Trucks N. Am. LLC, Judge Mosman, from the United States District Court for the District of Oregon, found that certain emails in the possession of Daimler Trucks North America LLC (“Daimler”) and that were sought by plaintiff were protected by the attorney-client privilege, as the communications were made for the purpose of obtaining legal advice, despite some of the emails not including an attorney as an author or recipient.
In this action, plaintiff filed suit against Daimler for age discrimination in connection with his unsuccessful job application for a position opening posted by Daimler. The position that Daimler posted was already held by a foreign national whom Daimler sought to sponsor for a H1B1 visa so that he could remain in his position. In order to sponsor its employee, Daimler had to advertise the position and establish that there were no U.S. citizens who were willing and able to perform the position, then submit such proof to the Department of Labor. To assist in complying with the Department of Labor and immigration laws, Daimler retained outside immigration counsel. The emails disputed in this proceeding were communications involving outside counsel and Daimler employees, including a recruiting manager and a hiring manager.
In determining whether the disputed emails were privileged, the court stated that the attorney-client privilege protects not only communications between attorneys and clients when made for the purpose of giving legal advice, but also, in the corporate realm, “communications between non-attorney corporate employees when the communications are made for the purposes of obtaining legal advice from an attorney.” For example, many of the disputed emails involved the recruiting manager, who acted as intermediary between the hiring manager – who had knowledge about each candidate’s qualifications – and outside counsel. After reviewing these emails in camera, the court found that although some did not include outside counsel as a recipient, “the attorney-client privilege squarely cover[ed] communications between corporate employees who [were] discussing the types of things they need to discuss in order to present a question or information to a lawyer for the purpose of obtaining legal advice.”
The court even found that emails between the recruiting manager and the hiring manager prior to outside counsel becoming involved were covered by the attorney-client privilege. Although it was not clear to the court whether the information sought by the Daimler employees was the exact information that was required to obtain legal advice from outside counsel, the recruiting manager initiated conversations with the hiring manager for at least the partial purpose of seeking legal advice from outside counsel.
The decision in Ozgur is helpful to understand how far the attorney-client privilege can extend. While this may be an outlier decision, the court’s finding that communications between non-attorneys may be attorney-client privileged even before counsel is retained certainly provides a basis for non-attorneys to consider marking communications as privileged when the communications are related to pending or potential litigations or are conducted at the direction of and/or for the benefit of counsel. Of course, attorney-client privilege designations in a privilege log without attorneys listed may give rise to disputes, but properly worded and captioned documents can mitigate that. This decision should also serve as a reminder that when reviewing documents for privilege, it is important in some cases to evaluate documents that may not include attorneys as authors or recipients of a communication. Communications between non-attorneys related to a litigation may refer to discussions with counsel without any mention of a lawyer or law firm name, or perhaps a first name only. These types of communications can be challenging to identify as privileged, when common methods like targeted search terms are utilized to segregate privileged communications involving known attorneys involved in the matter.