Attorney-client privilege is a perpetually vexing creature of the law. This is perhaps most so in its intricacies, because the value of the privilege lies in its predictability, and yet the countless postures in which clients consult with attorneys can defy ready regularity. Two previous articles by this author have interrogated how privilege should treat attachments to emails with counsel, after a case about paper enclosures in 1981 laid down a misguided rule that such pre-email attachments ought to be considered independently of the privileged communication. The recommended answer was called the Part & Parcel Principle: attachments that are part and parcel of a privileged exchange are inseparable from the entirety. Two pre-email Supreme Court cases had shed some light on the proper answer, but cannot directly control the question, leaving lower courts to debate the answer irresolutely. Meanwhile, developments in email technology have moved the question even further from archaic paper enclosures, opening new problems to be addressed even as the old remains unsettled. In light of both new technology and fifty years of quarreling cases, further refinements to the Principle suggested by a few astute cases are proposed to align it more closely with Supreme Court precedent, but it remains to be seen whether courts will coalesce over these commonsensical solutions to a very common problem.

Continue reading The Part & Parcel Principle, III: Old Cases and New Tools Vying in Applying Attorney-Client Privilege to Email Attachments