Digital communication is second nature and we rarely think about how easy it is for others to access our emails, texts and other forms of digital dialogues; however, it’s an important thing to consider when maintaining attorney-client privilege over email communications.
ASK YOURSELF THESE QUESTIONS:
- Do your kids use your email account?
- Does your employer have the right to monitor your email?
- Did you print an email and leave it sitting out in a room used by other people?
If the answer to any of these questions is YES, then you have potentially lost confidentiality to your email communications. NY Courts have ruled that there is no attorney-client confidentiality in email communications that fall into any of these categories. The cases where these examples arose are poignant: 1) a divorce action, where the kids used a parent’s email account and thereby caused the parent to lose attorney-client privilege to emails on that account; 2) automatic waiver of attorney-client privilege to emails on a work email account where the hospital employer had a policy that permitted it to monitor email usage without notice; and 3) attorney-client privilege was waived with regard to an email that an individual printed out and left on a desk in a room that was used by multiple people.
Diligence is the key. If you need confidentiality, take reasonable steps to ensure that you are maintaining it.
See also the cases: Wills v. Willis, 79 A.D.3d 1029, 1030-31 (2d Dep’t 2010); Scott v. Beth Israel Medical Center Inc., 17 Misc. 3d 934, 938 (Sup. Ct., N.Y.Co. 2007); Parnes v. Parnes, 80 A.D.3d 948, 950-51 (3d Dep’t 2011); @iplegalfreebies and www.kasterlegal.com.
BY: Vanessa Kaster, Esq., LL.M.