A Blackberry is no longer simply a fruit. A Treo is neither Oreo misspelled nor a group of three. And Outlook is not just an attitude. Blackberries, Treos, Outlook, and similar products have revolutionized the way businesses communicate and conduct business. They are also transforming your relationship with your attorney.
Past issues of Liability Alert have discussed business’ duty to preserve documents and the importance of document retention policies.(1) Recent cases have underscored the importance of e-mails in the context of the attorney-client relationship. At the heart of the controversy is the established rule that the attorney-client privilege protects communications between the attorney and the client only. The presence of a third party during the "conversation" may preclude any protection.
During Martha Stewart’s recent trial, the defendant e-mailed her lawyer her version of the facts. Ms. Stewart’s attorney responded by e-mail. Ms. Stewart subsequently forwarded the original e-mail and the attorney’s response to her daughter. The court ruled that by forwarding these messages to a third party, Ms. Stewart waived the attorney-client privilege.(2)
Another court ruled that attorney-client privilege was waived when an attorney provided documents to an expert witness electronically.(3)
These rulings are significant because a thoughtless "forward" or "reply to all" could spell disaster for the attorney-client privilege. It is vital that businesses establish and follow appropriate procedures when safeguarding information that may be protected. To avoid inadvertently waiving privilege, certain rules should be followed:
Do not forward privileged e-mails. Disclosing privileged documents to third parties can waive the attorney-client privilege, whether the third parties are family members or experts. Thus, it is vital that such documents not be forwarded without thoughtful consideration. Before hitting the "forward" button, think about the identity of any potential recipients and whether you might be destroying a privilege.
Monitoring Policies. Many businesses monitor the e-mail activities of their employees. If the individuals performing the monitoring are not attorneys, this may be sufficient to waive privilege. Employers need to consider both the benefits and pitfalls of such monitoring policies.
E-mail Groups. There are often large groups of people involved in complex transactions and litigation. The groups may include business people, in-house lawyers, and/or outside lawyers. When setting up e-mail groups, give the group a dynamic name so that a privileged communication is not accidentally sent to the wrong group, or difficult to identify as privileged in a document review later. If your group name is simply the opposing party’s name, for example, it may appear that you sent privileged documents to the other side, which would destroy the privilege.
Education. Employees may not be well-versed in the logistics of maintaining attorney-client privilege. Educate them about the possible implications of their actions. This may be your biggest weapon in the fight to retain attorney-client privilege.
If you have questions or need assistance in establishing good policies to protect privileged communications, the Torts, Trial, and Insurance Group at Parker Poe is ready to assist.
(1) See Think Twice Before Hitting "Delete", Liability Alert (May 2004); Think Twice Before Destroying Documents, Liability Alert (December 2001); Documents: To Destroy or Not to Destroy? At Least Ask the Question, Liability Alert (May 1998).
(2) United States v. Martha Stewart, 387 F. Supp. 461 (S.D.N.Y. 2003).
(3) United States Fidelity & Guaranty Co. v. Brasperto Oil Services Co., 2002 WL 15652 (S.D.N.Y. Jan. 7, 2002).