The suspense and anticipation were fun while they lasted, but proved quite short-lived for those of us excitedly awaiting the US Supreme Court’s consideration of an interesting question regarding attorney-client privilege. While oral argument was held in the case of In re Grand Jury, the US Supreme Court ultimately dismissed the case.
Read MoreBecause of the volumes of information and the complexities of data found in many cases that require extensive electronic discovery, issues related to attorney-client privilege can require significant attention during the document search, review, and production processes for these cases. Addressing attorney-client privilege requires particular nuance when considering “dual-purpose communications,” in which both legal advice and business guidance are discussed. By granting certiorari to hear arguments on In re Grand Jury, 23 F. 4th 1088 (9th Cir. 2022), the US Supreme Court will consider soon a split among federal judicial circuits regarding the test to use when assessing whether attorney-client privilege applies with regard to such “dual-purpose communications.”
Read MoreKey Insight: Defendant cannot be compelled to produce text messages from employees’ personal cell phones because they did not have possession, custody, or control of the devices. An employer has possession, custody, or control of a cell phone when the employer issued the cell phone, the cell phone is used for business purposes, and the employer has a legal right to obtain communications from the cell phone.
An email does not become privileged simply by including counsel as a recipient to an email. If the email was not sent with the purpose of obtaining legal advice, it is not privileged.
An independent forensic examination of electronic devices for electronic communications is appropriate when a party intentionally delays or withholds relevant and discoverable communications.
Nature of Case: Wrongful Termination, Employment Law
Electronic Data Involved: Text Messages, Email
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