Blumenthal v. Kimber Manufacturing, Inc.
2003 Conn. LEXIS 295, 265 Conn. 1, 826 A.2d 1088 (2003)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A communication from a corporate employee to corporate counsel is protected by the attorney-client privilege if it is made in confidence for the purpose of obtaining legal advice, even if it only conveys factual information to enable the attorney to give that advice. The crime-fraud exception only pierces this privilege if there is probable cause that a crime was committed and that the specific communication was made in furtherance of that crime.
Facts:
- Smith and Wesson Corporation (Smith & Wesson), a firearms manufacturer, entered into a settlement agreement with various governmental agencies regarding pending and threatened litigation.
- The agreement required Smith & Wesson to engage in certain manufacturing, sale, and marketing practices that were opposed by most of the firearms industry.
- Kimber Manufacturing, Inc. (Kimber) was a firearms manufacturer that, like others in the industry, was a potential defendant in similar litigation.
- Dwight Van Brunt, Kimber’s vice president of marketing, sent an e-mail regarding the firearms industry’s initial reactions to the Smith & Wesson agreement.
- The e-mail was sent to Leslie Edelman (Kimber's president), Denis Schusterman (Kimber's chief financial officer), and Jerry S. Goldman (an attorney in private practice representing Kimber).
- The e-mail was also copied to Ryan Busse, Kimber's national sales manager.
Procedural Posture:
- The Connecticut Attorney General (petitioner) issued interrogatories and a subpoena duces tecum to Kimber Manufacturing, Inc. and its president (respondents) as part of an antitrust investigation.
- The respondents complied in part but withheld one e-mail, asserting it was protected by the attorney-client privilege.
- The petitioner filed an application for compliance in the trial court to compel production of the e-mail.
- The trial court conducted an in camera review of the e-mail to resolve the dispute.
- The trial court denied the petitioner's application, ruling that the e-mail was protected by the attorney-client privilege and the crime-fraud exception did not apply.
- The petitioner appealed the trial court's decision to the Appellate Court.
- The Connecticut Supreme Court transferred the appeal to itself before the Appellate Court could hear it.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the attorney-client privilege protect an internal corporate e-mail sent by an employee to senior management and outside counsel that discusses industry reactions to potential litigation, and if so, does the crime-fraud exception compel its disclosure upon allegations that it was in furtherance of an illegal act?
Opinions:
Majority - Katz, J.
No, the e-mail is not subject to disclosure. The attorney-client privilege protects the communication, and the crime-fraud exception does not apply. The court applied the four-part test from Shew v. Freedom of Information Commission and found all elements satisfied. First, the attorney, Goldman, was acting in a professional capacity for Kimber. Second, the communication was from and among current Kimber employees. Third, although the e-mail did not explicitly request legal advice, the court inferred from the context of threatened industry-wide litigation that its purpose was to provide Goldman with factual information necessary for him to give sound legal advice to Kimber. The privilege protects not only requests for advice but also the 'giving of information to the lawyer to enable counsel to give sound and informed advice.' Fourth, the limited distribution to senior management and counsel indicated the communication was made in confidence. The court also held that the crime-fraud exception was inapplicable because the petitioner failed to meet his burden. Even assuming probable cause of an unlawful boycott, there was no evidence the e-mail was made in furtherance of such an act; it was a factual update and did not advocate for any illegal activity.
Analysis:
This decision reaffirms a broad application of the corporate attorney-client privilege, particularly for modern electronic communications. It clarifies that a communication does not need to contain an express request for legal advice to be privileged; the context and purpose of providing information to counsel for future advice are sufficient. This precedent provides corporations with significant protection for internal communications assessing legal risks. Furthermore, the court sets a high bar for invoking the crime-fraud exception, requiring a direct link between the communication and the furtherance of an illegal act, thereby distinguishing between communications that are part of a crime and those that merely discuss subjects related to potential wrongdoing.
