Recent Decision Suggests Risks
Some of these issues have come to the forefront lately because of a decision from the U.S. District Court for the Northern District of California. In Fourth Dimension Software v. Der Touristik Deutschland GMBh, the parties were disputing whether a party should be compelled to produce a document that the producing party claimed was privileged. The CEO of the company had received an email containing privileged advice. While on travel, he forwarded the email to a central email address at the hotel where he was staying, with the request: “Please print one copy. I’m waiting at the front desk. Thanks.” As a result, the court found that the CEO had waived the privilege applicable to that email.
The court concluded that forwarding the email to the front desk suggested that the CEO did not intend for the email to be confidential: any member of the hotel staff may have had access to the email, and the email did not contain any confidentiality warnings or other language instructing the front desk employee to delete it after printing. Thus, the court concluded that the CEO did not “reasonably expect confidentiality.”
Steps to Protect the Privilege
Being aware of the risk to privilege can help lawyers and clients alike reduce the chance that a privileged communication could be disclosed to others. Lawyers can take steps to prevent third parties from participating in privileged communications (subject to certain exceptions, such as agents, experts, or other consultants who may also share in the privilege). To the extent that a third party can participate in a privileged communication without waiving the privilege—such as an expert retained to assist with litigation—the lawyer can take steps to document the protected status of the relationship to avoid waiver.
Lawyers can also be aware of the risks inherent in traveling. Notwithstanding the recent decision finding a waiver of privilege after a privileged email was forwarded to a hotel desk, most practitioners recognize that there is not a blanket per se rule that forbids such conduct. Indeed, the Northern District of California court specifically noted the circumstances present there, including that the CEO did not identify a specific person to print the email (but just forwarded it to a generic email address) and did not ask the recipient to avoid reading the text and to delete the email after printing. Taking steps like that could support an argument down the road that the lawyer or client acted consistently with the desire to maintain or protect the privilege.
Lawyers can take steps to ensure that they do not let their guard down. Be aware while traveling and in public places: Is a third party in a position to overhear a privileged conversation or review a privileged document? Be cautious in a rideshare, elevator, or plane where bystanders could obtain information that is otherwise privileged. Sometimes it is not practical to implement a total ban on phone calls or discussions about client work while in a rideshare. However, any calls can be handled while wearing headphones, instead of on speaker, to help reduce the risk that the entire conversation could be overheard. Lawyers who travel frequently could consider using a thin privacy shield that can be placed on a laptop screen to allow the lawyer to review critical materials while preventing seatmates or other travelers from reviewing the privileged information on the screen.
Lawyers may also face risks when discussing privileged or confidential matters in courthouses: lawyers may mistakenly believe that because most people present are handling their own legal matters, they can be less careful about discussing privileged information than they otherwise would be.
By being aware of the potential risk for waiver, lawyers and clients can take steps to maintain the privilege.