In Charm v. Kohn, C.A. No. 08-2789-BLS, Suffolk Superior Court (J. Fabricant) (September 30, 2010), a Massachusetts Superior Court judge found an email inadvertently forwarded to opposing counsel by the defendant was privileged and, therefore, stricken by the court.
The defendant’s counsel sent an email to opposing counsel with a CC to his co-counsel and a BCC to his client, the defendant. The defendant responded to the email using the “reply to all” function, thereby transmitting his comments to opposing counsel. The content of the email left no doubt that he intended the communication for his counsel only. When the defendant’s counsel noticed the error, he sent an email to opposing counsel demanding deletion. Opposing counsel declined and later used the email as an exhibit to his opposition to a Motion for Summary Judgment. Defendant’s counsel moved to strike the email.1
The court noted the topic of inadvertent disclosure of attorneyclient communications has received considerable attention with the rise of electronic discovery. In the electronic discovery context, the consensus is a client does not lose the benefit of the attorney-client privilege for an otherwise privileged communication through inadvertent disclosure if the client proves he and his counsel took reasonable steps to preserve the communication’s confidentiality.
The client, not the counsel, made the inadvertent disclosure in this case. The court noted the key question is whether the client showed he and his counsel took reasonable steps to preserve the confidentiality of the communication. The court considered the following factors: (1) the transmission to opposing counsel was unintended; (2) the mistake was common and easy to make; and (3) the error was quickly noted and the counsel immediately informed opposing counsel demanding deletion. Acknowledging that a BCC gives rise to a foreseeable risk that the client would respond as he did, the court noted “excessive readiness” to find waiver would tend to erode the privilege. The court warned, as a matter of courtesy, lawyers should avoid the temptation to seize opportunities arising from inadvertent disclosures. A client who seeks to preserve the privilege, however, needs to be careful, especially when using a means of communication that poses known and obvious risks. Lawyers should advise clients to be careful and avoid practices that exacerbate risks. As the court found the defendant met his burden of showing steps to preserve confidentiality of the email in this instance, the court allowed the defendant’s motion to strike.
Although the court preserved the privilege in this case, there is a lesson to be learned. When dealing with attorney-client communications, attorneys should take reasonable steps to ensure the privilege is protected.