In a cautionary tale, a court ruled that a client waived the attorney-client privilege when he sent an email to a hotel desk clerk to print. ABA Litigation Section leaders emphasize the need for attorneys to educate their clients on how to properly safeguard privileged information, especially in the era of remote work.
Unnecessary Disclosure Destroys Privilege
In Fourth Dimension Software v. Der Touristik Deutschland, GmbH, the plaintiff withheld an email deemed protected by the attorney-client privilege. The plaintiff’s president and CEO received the email from his son, who was also the company’s former in-house counsel. The CEO forwarded the email to a hotel front desk’s email address to print. Seeking the production of the email, the defendant argued that the attorney-client privilege did not apply, or alternatively, that the disclosure to the hotel clerk waived any privilege.
The U.S. District Court for the Northern District of California evaluated the applicability of privilege under California law and held that the attorney-client privilege applied because the communication had the dominant purpose of providing legal advice between attorney and client. The son had continued providing legal advice to the client even after he ceased being its in-house attorney. While the defendant argued that the communication contained business and not legal advice, the magistrate judge looked at the nature of the relationship, rather than the communication’s content, in protecting the privilege. The defendant also did not marshal evidentiary support to prove that the son was not providing legal advice due to his familial relationship.
Nevertheless, the court found that the plaintiff waived the attorney-client privilege when the CEO forwarded the email to the hotel front desk to print. The plaintiff did not explain how this public disclosure was reasonably necessary to transmit the information, especially when the CEO had received the email.
Additionally, the court concluded that the plaintiff did not intend to keep the email confidential, as the CEO had sent the communication to a generic hotel email address. Presumably, various hotel staff could access the email. Nor did the email contain any language indicating that it was considered confidential, not to be read or shared, or to be deleted after printing.
The court further rejected the plaintiff’s reliance on California Evidence Code §917(b), which preserves the privilege when persons “involved in the delivery, facilitation, or storage of electronic communication” have access to its contents. According to the court, the hotel front desk was not a person with such involvement, but an unnecessary third party to whom the plaintiff knowingly disclosed the privileged email without any confidentiality safeguards.
A Lesson Relearned
Litigation Section leaders agree the court reached the right result. “While the holding was based on California law, providing a privileged document to a general hotel email address to arrange for printing is imprudent, to say the least, under any state’s law,” remarks John M. Barkett, Miami, FL, cochair of the Section’s Ethics & Professionalism Committee. “This is like the printed version of having a privileged conversation in a crowded elevator which every attorney should know not to do,” agrees Naomi M. Berry, Miami, FL, cochair of the Section’s Business Torts & Unfair Competition Committee. “Form matters in trying to protect the privilege; a prudent lawyer will figure out how to print the document without jeopardizing the privilege,” explains Barkett.
Section leaders believe that in some cases, printing an email could be reasonably necessary to further the purpose of the privileged communication. “There are certainly circumstances where an attorney could anticipate not having an internet connection or not being able to use a device such that they may print emails which would further the purpose of the communication,” notes Berry. “For example, an attorney could be visiting with a client in a prison where they are not allowed to bring in electronic devices; in such a circumstance, the attorney may print some emails to discuss with the client,” she illustrates.
However, Section leaders counsel that just articulating a compelling reason alone might not be enough to change the holding in Fourth Dimension Software. “Because the process employed to obtain a printed copy did not respect the importance of confidentiality, a compelling reason unaccompanied by compelling safeguards is not going to carry the day,” explains Barkett.
Heightened Caution Needed in the Age of Remote Work
Attorneys and clients should be careful in handling privileged communications, particularly when working from home. “In the era of working remotely, it’s much more likely that a family member can walk up behind you at your desk or overhear a zoom meeting,” cautions Berry. Another circumstance that might potentially waive privilege is “receiving emails on a home computer where family members access your email account on a regular basis,” adds Barkett.
Moreover, attorneys should not assume that clients know how to handle privileged communications. “Clients must be advised properly on how to protect the privilege,” emphasizes Barkett.
Hashtags: #attorneyclient, #privilegedcommunication, #discovery
- California Evid. Code § 952: Lawyer Client Privilege.
- Susan F. Dent, “Privilege Waived Due to In-House Counsel Involvement,” Litigation News (Jan. 28, 2019).”
- C. Thea Pitzen, “Presence of Client’s Parents Waived Privilege Claim,” Litigation News (Aug. 13, 2019).
- Peter J. Murphy, “Privileged Waived for Emailed Copied to Unrepresented Third Party,” Litigation News (Nov. 1, 2018).
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