Interesting issues relating to the Pennsylvania attorney-client privilege arise in the context of an email string or email chain involving corporate employees, where some, but not all, communications on the string are with counsel. Prior to the widespread use of email, many corporate decisions were made in face-to-face meetings with counsel present. When those meetings were for the purpose of seeking legal advice, the communications in those meetings, and documents reflecting the communications at those meetings, would be privileged. Now, email has, to an extent, replaced face-to-face meetings as the predominant method of discussion within a business enterprise. In the process, new issues of the application of the privilege have emerged.
In Rhoads Industries v. Building Materials Corp. of America , 254 F.R.D. 238 (E.D.Pa. 2008), the U.S. District Court for the Eastern District of Pennsylvania analyzed the extent to which communications may be withheld, and the proper way to assert the privilege, in situations involving email strings where some messages in the string contain communications with counsel and some do not. In a ruling that provides good direction to business litigation counsel on how to assert the privilege with respect to such email strings, the court explained, subject to other prerequisites for the application of the privilege, that:
