## Facts

- SodexoMAGIC, LLC, a campus food-services vendor, and Drexel University were in federal litigation arising from their dining-services contract.
- During discovery, each side withheld numerous documents (largely internal emails) and served privilege logs asserting attorney-client privilege and, in some instances, work-product protection.
- The court required the parties to submit 50 disputed documents for in camera review as representative samples to test the validity of the privilege assertions.
- The disputed communications included internal corporate emails involving in-house counsel, outside counsel, business personnel, and attorney subordinates.

## Issues

1. Under Pennsylvania law, when are internal corporate communications protected by attorney-client privilege, including communications involving in-house counsel?
2. How should privilege be evaluated for corporate emails that include non-lawyers, copy counsel, or mix business discussions with legal advice?
3. Which of the 50 submitted documents were properly withheld as privileged or work product, and which had to be produced?

## Decision

- The court applied Pennsylvania’s attorney-client privilege statute and the multi-element test for establishing privilege, placing the burden on the party asserting protection.
- The court held that communications with in-house counsel may be privileged to the same extent as communications with outside counsel when counsel is acting in a legal capacity and the communication is confidential and for the primary purpose of obtaining or providing legal advice.
- The court construed privilege narrowly and rejected the view that copying or addressing an attorney automatically renders an email privileged.
- After document-by-document review, the court partially sustained and partially overruled each side’s privilege claims, ordering production of documents that were primarily business communications, insufficiently confidential, or otherwise unsupported by the required elements.

## Legal Principles

- Under Pennsylvania law, attorney-client privilege protects confidential client communications made to counsel (or counsel’s agents) for the primary purpose of obtaining legal advice or legal services, where the privilege is claimed and not waived.
- In the corporate setting, privileged communications can include counsel’s communications with employees concerning matters within the scope of their duties when made to obtain or provide legal advice.
- Privilege does not attach merely because an attorney is copied; the content and purpose must be legal rather than predominantly business or operational.
- Dissemination to unnecessary recipients or inclusion of third parties can defeat confidentiality and support a finding of waiver.
- Parties asserting privilege must support each element; failure to do so results in compelled disclosure.
- Work-product protection applies to materials prepared in anticipation of litigation, but is not a substitute for privilege where documents reflect ordinary business activity.

## Conclusion

The court clarified that Pennsylvania corporate attorney-client privilege protects internal communications seeking or providing legal advice, including through in-house counsel, but requires confidentiality and a primarily legal purpose; applying a narrow construction, it ordered production for documents that were mainly business communications or inadequately supported by the privilege elements.


SodexoMAGIC, LLC v. Drexel Univ., 291 F. Supp. 3d 681 (E.D. Pa. 2018)