Technological advances often create issues previously undecided by the Courts. The use of email to contact clients, adversaries and the Court has become increasingly popular, but also comes with a host of discovery and confidentiality issues.
Recently, in Siras Partners v. Activity Kuafu, (1st Dept. 2018), the First Department heard a case regarding the waiver of attorney-client privilege due to the content of emails sent to third-parties that were produced in discovery. The Court found that by emailing a third party about the advice of his attorney, the defendant waived attorney-client privilege not only as to that email, but as to any and all documents related to the content of the email.
While the email was sent before the commencement of the lawsuit itself, the simple fact that advice from the defendant’s attorney regarding the substance of the lawsuit was within the email was sufficient to be a waiver of attorney-client privilege.
The crux of this issue is the content of communication as well as the recipient of that information. The recipient of the email in the Siras case was a business partner and friend of the individually named defendant, which may have been why the defendant was so quick to email communication with his private counsel.
Nevertheless, this decision shows that now, more than ever, it is imperative that attorneys are diligent in monitoring their communication via email and are diligent in warning their clients about the potential pitfalls of sharing confidential and protected information even with their closest family and friends. And frankly, the title of this post also pertains to emails and texts unrelated to litigation.
Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions.