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.

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Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.

Photo of Keisha-Ann Gray Keisha-Ann Gray

Keisha-Ann G. Gray is a distinguished litigator and trial lawyer who has secured significant victories in federal and state courts (jury trial and otherwise) for organizations facing “bet the company”, high-reaching, reputational risk claims. An award-winning partner in Proskauer’s renowned Labor & Employment…

Keisha-Ann G. Gray is a distinguished litigator and trial lawyer who has secured significant victories in federal and state courts (jury trial and otherwise) for organizations facing “bet the company”, high-reaching, reputational risk claims. An award-winning partner in Proskauer’s renowned Labor & Employment department and co-chair of the Firm’s Workplace Investigations practice group, she advises clients on high-stakes employment litigation and complex investigations matters. As important social change movements like Black Lives Matter, #MeToo and LGBTQ Pride continue to shape society and businesses, Keisha-Ann is the go-to advisor when addressing issues related to discrimination, harassment and/or lack of diversity.

With 20+ years in practice, Keisha-Ann frequently speaks and trains on employment matters such as litigation and trial practice, conducting effective investigations (the trauma-based approach), Diversity, Equity & Inclusion, and Anti-Discrimination/Anti-Harassment. Her “real talk” style of delivery provides clients with actionable and practical best practice solutions to today’s most challenging workplace issues.

Prior to joining Proskauer, Keisha-Ann served as an Assistant United States Attorney in the Eastern District of New York and federal law clerk in the U.S. District Court for the District of Puerto Rico.  The breadth of Keisha-Ann’s experience and background in federal government, coupled with her tenure in private practice as a Big Law partner and employment litigator, gives her the unique ability to meaningfully connect with diverse groups of people. This skill enables her to advocate effectively and successfully (in and out of the courtroom) for her clients. As a result, Keisha-Ann is also frequently called upon to conduct high-profile internal investigations. Because of her unique and varied skill set, clients routinely engage Keisha-Ann to handle their most sensitive matters which, due to her involvement, often successfully result in non-public, confidential resolutions – precisely the mandate required by her clients.

Keisha-Ann enjoys giving back to the community and profession by serving as a member of the Mayor’s Advisory Committee on the Judiciary. She also serves on the Board of the Attorney Grievance Committee for the NY Supreme Court Appellate Division, 1st Department, the Board of the Federal Bar Council, and the Board of the Eastern District Association. In addition, Keisha-Ann co-Chairs the Federal Bar Council’s Employment Litigation Committee, and mentors junior female attorneys and junior attorneys of color.