Adversaries often challenge each other’s privilege calls in the thick of litigation, and sometimes those challenges are elevated to a court’s in camera review. In Governo Law Firm LLC v. CMBG3 Law LLC, et al., Judge Salinger, sitting in the Massachusetts Business Litigation Session, ruled that the attorney-client privilege protected from production a confidential email from the defendants to their counsel “seeking feedback on a draft press release . . . embedded in the text of the email.”
After reviewing the email in camera, Judge Salinger ruled that “it is evident that this defendant sent this confidential communication to counsel in order to elicit legal advice as to whether issuing a press release in this form could create any legal exposure for the Defendants.” Although the communication “does not contain legal advice,” “that does not matter,” explained Judge Salinger. “Any confidential communication between attorney and client, in either direction, is privileged if it [is] made for the purpose of obtaining or giving legal advice—whether the communication conveys legal advice or not.”
Judge Salinger also observed that because the “attorney-client privilege protects confidential communications, not confidential information,” “a confidential attorney-client communication of a draft press release or draft letter to a third party will remain privileged (barring waiver) even if the document is then put into final form and sent out.”
You can read the decision here.
You can also read our earlier post about the case here. That post focuses on a ruling by Judge Salinger barring evidence of reasonable royalty damages.
Suffolk Superior Court
Docket Number: 1684CV03949-BLS2
Case Name: Governo Law Firm LLC v. CMBG3 Law LLC, et al.
Date of Decision: March 29, 2022
Judge: Judge Salinger
Sara Lonks Wong is a partner in Nutter’s Litigation Department. She focuses her practice on business litigation, intellectual property litigation (with particular interest in copyright and trademark law), complex commercial ...
Eric P. Magnuson co-chairs Nutter’s Business Litigation practice group. Blending practicality with tenacity and strategic thinking, Eric helps clients solve legal challenges so that his clients can focus on what they do ...