United States: Corporations May Risk Waiving Privilege Protection When Communicating With Their Own Board Members

It seems obvious that corporations do not waive privilege protection by disclosing privileged communications to their own board members. But what about outside board members receiving such communications where they work or live?

In O'Neill v. City of Springfield, Civ. No. 30036-MGM, 2023 U.S. Dist. LEXIS 82572 (D. Mass. May 11, 2023), family members sued the City after their sister died in custody. Although the City and the police union shared a common interest in resisting plaintiff's claims, the court understandably held that their common interest agreement did not apply to negotiating the terms of a disciplinary memorandum criticizing police conduct — so the City and the union were adversaries in that context. The police union's president used his City email address when communicating with the union's lawyer — which the court found had waived the union's privilege and required those communications' production.

The court distinguished the case from the decision in United States ex rel. Wollman v. Massachusetts General Hospital, Inc., 475 F. Supp. 3d 45 (D. Mass. 2020), in which Mass. General's board chair received privileged emails at her employer Simmons College email address. That decision declined to find a waiver, pointing to the communications' privilege label, lack of any evidence that "the report had been inappropriately disseminated at Simmons," and Mass. General's quick request that Simmons respond to a subpoena seeking such documents by including those communications on its privilege log. O'Neill, 2023 U.S. Dist. LEXIS 82572, at *21. The police union's president and lawyer had not taken such protective steps.

Corporations would be wise to avoid communicating electronically to their outside directors using those directors' employers' email addresses. They should also consider similar protective actions even when mailing privileged board material to their outside directors' employers or residential personal addresses.

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