On 26 January 2022, the French Court of cassation ruled that internal exchanges forwarding and commenting on outside counsel’s advice regarding a company’s defence strategy are protected by legal privilege.
Extension of the protection of legal privilege
At the start of the case, in 2013, the French Competition Authority (FCA) carried out dawn raids on Whirlpool’s premises, suspecting that Whirlpool was engaged in various cartel practices in the ‘white’ and ‘brown’ goods distribution sector.
A few months earlier, following dawn raids on its competitors’ premises, Whirlpool had sought outside counsel advice in preparing its defence. Subsequently, Whirlpool’s in-house counsel exchanged emails between themselves and with other company employees in which they discussed the findings of the external law firm, summarised and commented on the law firm’s strategy and added their own views. When the dawn raid finally took place at Whirlpool’s premises, these exchanges were seized by the FCA.
The Paris Court of Appeal decided that the FCA should not have seized emails discussing the defence strategy set out by Whirlpool’s outside counsel, and so the seizure likely constituted an infringement of legal privilege.
The FCA argued that legal privilege only covers direct attorney–client correspondence, and so excludes documents that only refer to outside counsel’s statements or legal opinions.