In re Aenergy, S.A. (S.D.N.Y. 2020)

Key Insight: The primary purpose of an email must be to secure legal advice to be privileged. It is not enough to copy counsel on the email. If requests in the email are directed to non-legal employees and counsel does not weigh in, it cannot be said that the primary purpose is to seek legal advice. When it is unclear whether a document is providing legal advice or is driven by business or negotiation considerations, attorney-client privilege will not be extended to the document.

Categorical privilege logs must provide sufficient information to evaluate the privilege claim. The party’s vague and repetitive privilege log along with its attempts to claw-back unprivileged documents led to a loss of credibility with the court. The court ordered a re-review of its privilege determination with a revised document-by-document privileged log.

Nature of Case: Fraud, Contract Dispute

Electronic Data Involved: Email

Case Summary

Copyright © 2022, K&L Gates LLP. All Rights Reserved.