Copying general counsel does not in itself make a document privileged

Kleen Products LLC v. International Paper, Case No. 10 C 5711, 2014 U.S. Dist. LEXIS 163987 (N.D. Ill.), holding that an email that copies the in-house counsel (“along with several other high level managers”) — and generally asks for “comments” from the recipients, is not in itself privileged as a request of “legal review”, especially when the counsel offers no legal advice in response.

[T]he Court notes that the mere fact that … [the in-house counsel] may have been copied on a given communication does not automatically transform the contents of that message into a privileged request for legal advice.

It maybe significant that the in-house counsel in question was at the same time General Counsel, Chief Administrative Officer and Senior Vice President and Secretary of the company.

 When in-house counsel occupies both a legal and operational role, the test for determining if a document is privileged is whether the predominant purpose of the communication [was] to render or solicit legal advice. (internal quotation omitted) (citing to Swift Spindrift, Ltd. v. Alvada Ins., Co., No. 09 Civ. 9342 (AJN)(FM), 2013 WL 3815970, at *8 (S.D.N.Y. July 24, 2013)

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