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Relying on traditional case law emphasizing the importance of
keeping privileged communications confidential, courts examining
widespread intra-corporate sharing of privileged communications
sometimes conclude that such widespread circulation demonstrates
that the communications were not primarily
motivated by legal issues and therefore do not deserve privilege
protection. As if this were not troubling enough, other courts
apply a waiver analysis to such widespread intra-corporate
circulation.
In Lolonga-Gedeon v. Child & Family Services, No.
08-CV-00300A(F), 2012 U.S. Dist. LEXIS 67843 (W.D.N.Y. May 15,
2012), the court acknowledged that some communications claimed by
defendant to be privileged were shared only with company employees.
However, in addressing one email, the court held that
"Defendant's failure to demonstrate that [three employees]
each needed to know the information contained in the communication
has waived the attorney-client privilege." Id. at
*12.
It seems wrong to use a waiver analysis in this setting, because
the privileged email never went outside the corporation. However,
decisions like this highlight the need for corporations to warn
their employees not to share privileged communications beyond those
with a "need to know" – even within the
corporation.
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