Gordon Woodward Comments on Instructive Court Opinion Regarding Communication with In-House CounselOn March 22, 2018 by Schnader
In SodexoMAGIC, LLC v. Drexel University, Civil Action No. 16-5144 (ED Pa. 2018), Judge Baylson addressed the issue of attorney-client privilege and communications between company employees and their in-house counsel. This is an important issue for businesses as it arises routinely in litigation and can, at times, play a decisive role in complex commercial litigation.
The SodexoMAGIC opinion is notable in that it sets forth 13 hypothetical examples to assist parties in understanding what types of communications are privileged and why. We won’t recite each example here – Mindy Rattan writing for Bloomberg BNA recently published a must read article setting forth the basic law as well as the examples. See “Judge Uses Hypos to Explain In-House Attorney-Client Privilege.” Suffice it to say that not all emails to your in-house counsel are privileged and this is an excellent refresher for anyone who ever deals with this issue. At the very least, in-house counsel should be familiar with these examples and be in a position to instruct others in their organization as to the circumstances under which communications with in-house counsel may not be privileged.
Woodward is Co-Chair of the Firm’s Construction Industry Practice Group and Managing Partner of the Washington, D.C. office. His practice concentrates on litigation matters including construction, real estate, product liability, and general commercial disputes.