SodexoMAGIC, LLC v. Drexel Univ.
291 F. Supp. 3d 681 (2018)
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Rule of Law:
Attorney-client privilege protects internal corporate communications only when their primary purpose is to seek or provide legal advice; communications for business purposes or where legal staff act merely in a clerical or "scrivener" capacity are not protected.
Facts:
- Drexel and SodexoMAGIC, two corporations, were engaged in a business relationship.
- During their operations, employees of both corporations, including in-house counsel and paralegals, exchanged numerous internal emails regarding their business dealings.
- Some communications involved requests from business executives to legal staff to draft or edit contract language based on specific business instructions.
- Other communications included lawyers on large group email chains discussing primarily business matters.
- In some instances, legal advice provided by counsel was forwarded by non-lawyer employees to other non-lawyer employees.
- A legal dispute subsequently arose between Drexel and SodexoMAGIC, leading to litigation.
Procedural Posture:
- Plaintiff and Defendant were engaged in a civil lawsuit in a federal district court.
- During the discovery phase of litigation, a dispute arose over whether certain internal documents were protected by attorney-client privilege.
- The parties submitted a sample of 50 disputed documents to the court for an in camera review.
- The court issued this memorandum opinion to rule on the privilege claims and to provide guidance for the parties' remaining discovery obligations.
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Issue:
Do internal corporate communications involving in-house counsel or their subordinates fall under the attorney-client privilege when they mix legal and business discussions or when legal staff perform non-legal functions?
Opinions:
Majority - Baylson, J.
No. Internal corporate communications are not privileged when their primary purpose is business-related or when legal staff are not acting as legal advisors. The privilege protects only those communications made for the express purpose of securing legal, not business, advice. The court reasoned that the party asserting the privilege bears the burden of proving its application and that the privilege is to be construed narrowly. The court emphasized that the 'primary purpose' of the communication must be to obtain legal services. Therefore, simply including a lawyer on an email chain does not make it privileged if the discussion is primarily about business. Furthermore, when a lawyer or paralegal acts as a 'mere scrivener'—simply inputting text or edits at the direction of a businessperson without exercising legal judgment—the communication is not privileged. Forwarding otherwise privileged communications to third parties or outside the confidential corporate circle can also waive the privilege.
Analysis:
This opinion provides a practical and detailed guide for corporations on the application of the attorney-client privilege in the digital age. It underscores the critical importance of the 'primary purpose' test, warning that mixed business-legal communications risk losing their privileged status. The decision serves as a cautionary tale for in-house counsel and corporate employees, highlighting the need to separate requests for legal advice from routine business discussions to avoid compelled disclosure in future litigation. It reinforces that the role a lawyer plays in a specific communication is more important than their title.
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