Training is not privileged, for the same reason CC’ng an entire department will cause one to lose privilege on a conversation.
There are parties privy to the conversation (which the parties are aware are party to the conversation) that aren’t even remotely plausibly trying to get legal advice, or part of the matter being advised on in any direct way.
Trainings aren’t seeking legal advice.
Being a random employee reading email isn’t seeking legal advice.
The larger the group, the less plausible any argument gets for this reason. There is no way a lawyer is having a conversation or giving legal advice (actual advice) to 100 people at once. Even 10 is highly improbable.
If all parties to the conversation can’t even plausibly claim it’s a private conversation with their lawyer to seek legal advice, then the courts aren’t going to even think of taking a privilege claim seriously.
Even if they can it can still be pierced if there is evidence privilege was used to commit crimes, further a conspiracy, etc.
Nothing you’ve said is true categorically and many attorney hours have been spent arguing both sides of this with the outcome being anything but predictable. Again, the test is whether an attorney is communicating legal advice to the client (or such is being sought), which happens to be the corporation that acts via its employees. It’s rare in the legal context for someone to make a statement that is unarguably wrong, but luckily this is one of them:
“[T]raining materials prepared by in-house counsel to advise employees on the law applicable to their jobs are entitled to [attorney-client] protection because they provide legal advice.”
That is a rather special edge case - it was specifically directed training that she specifically requested on specific legal issues directly applicable to her job, directly communicated to her by an attorney, clearly marked as confidential, and was nearly purely legal advice directly applicable to her job.
It wasn’t a class given widely, it wasn’t broad or generic, it wasn’t given unsolicited, etc.
No. It was training given to the HR department. Thorman received generic training regarding how to classify exempt employees from an attorney. Thorman did not request the training personally.
It was a training given widely, and online. It was arguably broad and generic. It was given unsolicited (unless you count every training an employee is told to do as unsolicited).
The fact that you misunderstand the factual and procedural posture of this opinion should key you in to how out of your depth you are.
Let’s return to what was originally under discussion.
From you: “10 execs? Maybe. If they’re all involved in the same thing and all asking for advice. Seems unlikely to actually be the case though. So probably not.
100 folks listening to a presentation? Definitely not covered.”
From you: “Trainings aren’t seeking legal advice.
Being a random employee reading email isn’t seeking legal advice.
The larger the group, the less plausible any argument gets for this reason. There is no way a lawyer is having a conversation or giving legal advice (actual advice) to 100 people at once. Even 10 is highly improbable.
If all parties to the conversation can’t even plausibly claim it’s a private conversation with their lawyer to seek legal advice, then the courts aren’t going to even think of taking a privilege claim seriously.”
Here we have a standard training that was conducted online to an entire department via slideshow. Is it privileged? According to your heuristics, it’s not. Clearly it was.
Every discovery fight is a special edge case. Every assertion of privilege is a discovery fight, and the privilege itself is a special edge case. That’s why I said corporate privilege is hard in theory and even harder in practice.
Training is not privileged, for the same reason CC’ng an entire department will cause one to lose privilege on a conversation.
There are parties privy to the conversation (which the parties are aware are party to the conversation) that aren’t even remotely plausibly trying to get legal advice, or part of the matter being advised on in any direct way.
Trainings aren’t seeking legal advice.
Being a random employee reading email isn’t seeking legal advice.
The larger the group, the less plausible any argument gets for this reason. There is no way a lawyer is having a conversation or giving legal advice (actual advice) to 100 people at once. Even 10 is highly improbable.
If all parties to the conversation can’t even plausibly claim it’s a private conversation with their lawyer to seek legal advice, then the courts aren’t going to even think of taking a privilege claim seriously.
Even if they can it can still be pierced if there is evidence privilege was used to commit crimes, further a conspiracy, etc.