Halifax deals with many of the same issues as—and can be seen as a continuation of—In re Vioxx Products Liability Litigation. In that case, the U.S. District Court for the Eastern District of Louisiana, adopting the recommendations of a special master, established in 2007 that attorney-client privilege only applies to electronic communications for which the “primary purpose” was legal. The court in Vioxx also recognized that in-house lawyers are more likely than outside counsel to straddle the line between business and legal.

Halifax did take a small step beyond Vioxx by setting up the idea that if an email is sent simultaneously to a lawyer and a nonlawyer, then the communication cannot have been for the primary purpose of seeking legal advice or assistance. In such cases, U.S. Magistrate Judge Thomas B. Smith wrote, the email and attachments are not privileged and are discoverable. (Citing Vioxx, Smith said that if nonlawyers are copied on an email, it raises questions about the primary purpose of the communication.)

Daniel Plunkett, a member in McGlinchey Stafford, says this aspect of Halifax could create unnecessary machinations for in-house counsel or for clients dealing with in-house counsel.

“You might now need to send something separately to a lawyer asking for his legal input and then send a separate communication to a business person asking for input,” Plunkett says. “It seems tortured to me: Isn't it more efficient to get everybody talking together? And why can't a lawyer be talking to multiple people at once?”