E-Mail and Litigation: Protecting the Company's Privilege (Part 1)
So you have been sued, can you remember what you put in that email? Do they still have a copy? Did they forward it to anyone else? Email is dangerous in corporate litigation, to find out some of the risks read this and the next few articles on Protecting the Company's Privilege.
Never write if you can speak,
Never speak if you can nod,
Never nod if you can wink
- Attributed to the 19th century Boston political boss Martin Lomasney
One of the biggest risks with email is the loss of Attorney-Client Privilege. Generally this privilege protects communications that are sent between a client and an attorney from disclosure to third parties. Some jurisdictions only protect client to attorney conversations and those attorney conversations which are in response to a clients question. Therefore attorneys should structure their emails as responses to clients questions to provide the greatest chance for protection from disclosure.
Sometimes when email is from an attorney to a client and the communications in anticipation of litigation, the conversation can be protected under the work product doctrine. In order for this protection to apply the conversation must:
be between a lawyer and a client (person or entity);If any condition is not kept, the privilege is waived. With email, the condition of the conversation being kept in confidence is the one that is waived the most often. If an email is forwarded to an outside party, or someone who does not need to know the privilege can be waived.
be for the purpose of obtaining legal advice;
be to a lawyer acting in their capacity as a lawyer; and
be kept in confidence.
Continued in Part 2
