“Attachments to Attorney-Client Communications May Be Withheld as Privileged, Without an Independent Basis for Privilege,” But….

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

In Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court held that “attachments to attorney client communications may be withheld as privileged without an independent basis for privilege.” 

For example, if a client sends a privileged email to counsel seeking legal advice, and attaches several files, neither the email nor the attached files need to be produced in discovery.  But, there are major caveats.

In Jared S. Sunshine, “The Part & Parcel Principle: Applying the Attorney-Client Privilege to Email Attachments,” 8 J. Marshall L.J. 47, 54–55 (2014), this was called the “Part & Parcel Principle:

[W]here attachments comprise an integral part of a confidential communication with counsel for the purpose of obtaining legal advice, both the email and its factual attachments are privileged in their entirety, regardless of the attachments’ origin in the public domain, or their later dissemination.

Jared S. Sunshine, “The Part & Parcel Principle: Applying the Attorney-Client Privilege to Email Attachments,” 8 J. Marshall L.J. 47, 54–55 (2014), Id. at 54–55.

That principle was applied in Linet Americas: “Turning to Hillrom’s argument, Hillrom says Linet improperly withheld 33 documents that were attached to communications with Linet’s counsel but which are not independently privileged….  The Court notes that all the emails to which these documents were attached were sent to Linet’s outside counsel….”  It was undisputed for present purposes that the transmitting emails were privileged.

The Linet Americas court described the competing positions:

• The producing plaintiff, “Linet argues attachments to privileged emails that sought legal advice are also privileged as part of that communication, but it also says 29 of the 33 attachments have been or will be produced ‘as they exist independently of the privileged communications.’”  Plaintiff’s argument was, in my words, essentially “you can’t see what I sent to counsel, but if it isn’t privileged and it is responsive, you can see it independently.”
• The requesting defendants “maintain[] there is a per se rule that attachments to privileged communications cannot be withheld without an independent basis for privilege.” The Linet Americas court acknowledged that some decisions in its District continue to apply a per se rule.  The argument is that non-privileged documents do not become privileged simply by attaching them to a privileged email.

The Linet Americas court saw the issue as “more nuanced.”  It quoted Upjohn Co. v. United States, 449 U.S. 383 (1981), stating that “[a] fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, ‘What did you say or write to the attorney?’ but may not refuse to disclose any relevant fact within his [or her] knowledge merely because he [or she] incorporated a statement of such fact into his [or her] communication to his [or her] attorney.”  [emphasis added].

The Linet Americas court explained: “Linet does not argue that underlying documents attached to privileged communications are ‘independently privileged and immune from discovery’ from discovery; to the contrary, Linet says it has produced or will produce such documents that independently exist apart from the privileged communications.”

The Linet Americas court added that “non-privileged information [that] was communicated to an attorney may be privileged, even if the underlying information remains unprotected.”  It quoted precedent that “communications of facts are privileged even if the original facts are not. Thus, when letters to counsel included certain attachments, the fact that those documents were attached may be privileged, even if the originals are not.”  Discussing a split of authority, it wrote:

A large set of lower courts have interpreted Upjohn to mean that even though the underlying content of the independently-discoverable attachments is not privileged, the act of sending the attachments is privileged… These courts are concerned that if the act of attachment were disclosed, opposing counsel would be able to “reverse engineer” the contents of the otherwise-privileged email from the attachments.” [citation omitted].

Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024).

Linet Americas agreed with the reverse engineering concern and concluded that the better approach is to recognize “some limited protection for email attachments….”

In short, under what Linet Americas viewed as the better rule, the sender need not produce what was attached to a privileged email; however, if the attachment is not privileged and responsive, it must independently be produced. 

There may be an exception.  The Linet Americas court added: “If the attachments no longer existed in any form other than as attached to a privileged email, the analysis might be different, but that does not appear to be the case here.”

I have not seen the issue arise in the context of Linet Americas.

One related issue that I have seen involves the structure of a litigation review database.  If the database is set up to code parent and child attachments together, when the privileged email is coded as “privileged,” the attachments will be simultaneously coded as privileged.  If the database is also set up to code all near-duplicates similarly, the non-privileged, independent documents will erroneously be coded as privileged.  This could result in their not being produced independently, which would be an error under Linet Americas and other decisions.

The other related issue that I have seen raises the question in the context of privilege logs.  If only the top email in an email chain is listed in the log, the receiving party has no ability to evaluate the privilege claim.  On the other hand, logging each attachment may be costly and, if each attachment is logged, the log may also disclose information protected under Upjohn: “The client cannot be compelled to answer the question, ‘What did you say or write to the attorney?’”

The Sedona Conference suggests cooperation to prevent an issue from arising.  Commentary-on-Privilege-Logs-May-2024.pdf (thesedonaconference.org), 25 Sedona Conf. J. 221, 266, passim (May 2024 version):

To avoid later disputes, it is recommended that parties discuss early in the case whether threading will be used for review. This includes not just for review but also for logging, because there is a lack of consensus among courts that have addressed in the context of email chains (i.e., one document that contains multiple emails) whether it is sufficient to log the top level email or whether each component email in the chain must be individually logged. While one practice is to reflect on the privilege log only the top-level email information (while having the description accurately reflect the assertion of privilege over the entire chain), some court decisions endorse the position that every email in the chain must be separately logged. The drafters of this Commentary are not aware of any decision addressing whether emails suppressed from review through email thread identification technology must be separately logged….  On the other side of the question, courts reaching the decision consistent with Muro v. Target allow multiple emails in the same chain to be logged as a single entry, provided that all the parts of the communication in the email chain were properly privileged, or nonprivileged portions were otherwise produced.

Commentary-on-Privilege-Logs-May-2024.pdf (thesedonaconference.org), 25 Sedona Conf. J. 221, 266, passim (May 2024 version).

Sedona gives the following example: “Consider a privileged email between an attorney and her nonattorney client, which is then forwarded by the client to a nonattorney company employee. The metadata on the log for the later-in-time inclusive email would reflect only the communication between the nonattorney client and employee. If email threading is used, the original communication with the attorney may be suppressed from review and production and not accounted for on the log (absent negotiation on how to reflect it).”