Every lawsuit beckons the collection and production of relevant e-mail communications, paper files and other data. An essential question asked with respect to every document produced is: Will the attorney-client privilege or work-product privilege apply to protect this document from discovery? While this determination is in the hands of your litigation counsel, their hands may be tied in certain circumstances when clients inadvertently waive the privilege.
Generally, communications between clients and their counsel are protected by the attorney-client privilege, along with any other documents prepared by the attorney or the client in anticipation of litigation or in preparation for trial. Thus, once an insurance claim is denied or a lawsuit is filed, all communications and documents prepared in response to the complaint are protected by the attorney-client privilege. The privilege belongs to the client, however, and can be waived under certain circumstances.
It is essential to keep all communications between the attorney and the client confidential and away from the ears or eyes of third parties. Alabama courts generally find waiver when the communication is made in the presence of a third party who is neither an attorney nor a co-party to the lawsuit. Thus, clients should be careful when putting their lawyer on speakerphone or when discussing any aspects of a case with their lawyer in front of others. Moreover, clients should limit e-mail communications with their lawyers and only copy employees who are involved in the litigation. Any communications made in the presence of third parties or otherwise sent to third parties are open to discovery and are not protected by the privilege.
Federal courts also place importance on the client’s intent with regards to the confidentiality of the communications. These courts evaluate the circumstances to determine if the clients reasonably expected and understood the communications to be confidential. It is important to limit communications to only those employees who are in the “need to know” and/or are capable of providing information for the lawsuit with regards to their responsibilities. In other words, clients should not copy an employee who has no knowledge of the lawsuit or who otherwise has no need to know about the litigation preparation. Before forwarding your lawyer’s e-mail to anyone in the company, make sure to tighten up the list of recipients in order to better protect the privilege.
It is also important to note that simply copying an attorney on an e-mail will not protect the communication from disclosure. If the communication is not seeking legal advice or otherwise related to work on a pending lawsuit, the communication will not be protected by the privilege.
If communications are accidently disclosed, all is not lost. Courts will allow parties to protect the privilege after an inadvertent disclosure. To assist your attorney with maintaining the privilege in this event, it is important to have precautions in place to keep attorney-client communications confidential and to immediately apprise your attorney of any accidental disclosures.
The attorney-client privileged is a cornerstone of Anglo-American law, and it is essential to promoting free communications between lawyers and their clients with regards to every aspect of a lawsuit. In an age of continuous e-mail traffic, it is important to restrict the dissemination of these privileged communications. Before you hit the forward button on your computer or cell phone, remember to limit your distribution list only to those who are in the “need to know.”