On August 25, 2014, Magistrate Judge Sarah Netburn of the Southern District of New York issued an order compelling MasterCard to produce several documents that the company had previously identified as privileged. The plaintiff in the ongoing contract dispute, International Cards Company, Ltd., challenged MasterCard’s privilege log, which led Judge Netburn to instruct MasterCard to submit a sampling of the documents for her in camera review.

In making rulings on the privilege assertions, Judge Netburn held that certain email chains on which in-house attorneys were included were not privileged because “the predominant purpose of each document as a whole was not to render or solicit legal advice, but rather to discuss or advise on business matters.”  Throughout the order, the Judge found that unless an email specifically reflected legal advice or strategy, it could not be privileged.

Judge Netburn reminded the parties in her conclusion that “[d]ocuments shared with in-house attorneys are not presumptively privileged, nor are documents arising from conferences at which in-house attorneys were present.”  While this order contains fact-specific rulings, and is not binding authority on other courts, it serves as a useful reminder that not all communications sent to or from in-house counsel are protected by privilege.

See copy of the Order here.