It’s inevitable. Companies need to discuss legal issues. But how can employees do so while maintaining privilege? A California U.S. District Court recently took the position that merely CC’ing a company’s counsel on an email is not enough to maintain privilege. There must be evidence of an intent to obtain legal advice.

Here’s the practice pointer. If your employees are discussing a legal matter at the request of counsel, say so in the email. Something like, “per our lawyers’ request, we are contacting you” should give the company a fighting chance at maintaining privilege.

The California matter is a reminder that routine business communications cannot be shielded by privilege.

Scott R. Bialecki

Scott Bialecki, a former FTC attorney and IP litigator, is the co-Chair of Sheridan Ross P.C.'s Litigation Group.