Barry v. Medtronic, Inc., 1-14-cv-00104 (TXED October 31, 2016, Order) (Clark, USDJ)
Thursday, November 3, 2016
Assertion of Privilege for Communications With In-House Counsel Requires Proof That Communications Qualify as Legal Advice
The court granted in part plaintiff's motion for an order allowing it to use documents at trial over which defendant claimed privilege. "[W]ith regards to certain emails, [defendant] did not identify to the court, through its privilege log or otherwise, the employer of, or status as an attorney for [defendant] of, all of the individuals who made, or received copies of, these communications. [Defendant] did not show that the underlying facts in those emails or the emails themselves concerned a subject matter on which attorney’s advice was sought by [defendant]. To the extent that these may be communications among [defendant's] employees that were authorized to act on the legal advice — which is not clear to the court — [defendant] has not demonstrated that these communications qualify as legal advice rather than more generally relate to business decisions concerning finances or sales of products, etc. In today’s corporate environment, in-house legal counsel is often asked for input on and provides advice related to business decisions. Therefore, while [a recipient] may be an attorney, [defendant] has not met its burden to prove that these communications are privileged."