Green v. Beer, 2010 WL 3422723 (S.D.N.Y. Aug. 24, 2010)
In this day in age, it is easy to believe that everybody is familiar with email. That is not always the case. In this opinion, the district court reversed an order of the magistrate judge which found that plaintiffs’ attorney-client privilege was waived as a result of their son’s receipt of privileged emails where it was established that the son’s assistance was necessary to ensure plaintiffs’ timely receipt of the emails, in light of plaintiffs’ lack of email proficiency.
In this case, the magistrate judge determined that privilege had been waived as to emails created by or shared with non-parties who are not attorneys, namely plaintiffs’ financial advisors and plaintiffs’ son. Specifically, the court rejected the financial advisors’ assertions that they were “assisting in the transmission of factual information between Plaintiffs and Plaintiffs’ counsel” and found there was “no evidence that their involvement was necessary to ensure the provision of legal advice, or to facilitate the delivery of emails.” Likewise, the magistrate judge rejected the explanation of plaintiffs’ son that his “technical assistance was necessary for his parents to timely receive the email communications from counsel” because his parents were “not proficient in the use [of] electronic mail.” The magistrate judge reasoned that “[l]ack of technical competence … is not the equivalent of an inability to communicate. Mr. Green was not required to act as a translator between his parents and their attorney. Rather, he simply expedited their communications. There is no evidence that other, confidential means of communication would not have been sufficient.” Plaintiffs objected to the order.
Taking up the issue, the district court identified an exception to the principle that communications involving third parties are generally not privileged where “the purpose of the communication [to a third party] is to assist the attorney in rendering advice to the client” and where the party asserting the privilege can establish that the client had a reasonable expectation of privacy with respect to the communication at issue and that disclosure to the third party was necessary for the client to obtain informed legal advice. The court further established that disclosure to an agent of the attorney or the client does not result in waiver.
The district court sought additional guidance from New York State law addressing the "attorney-client privilege’s application in the context of electronic communications, including email." Section 4548 of the New York Civil Practice Law and Rules states: “No communication … shall lose its privileged character for the sole reason that it is communication by electronic means or because persons necessary for the delivery or facilitation of such electronic communications may have access to the content of the communication.”
Accordingly, the district court upheld the magistrate judge’s finding that privilege was waived as to emails disclosed to plaintiffs’ financial advisors where there was no evidence that the financial advisors "serve[d] some specialized purpose in facilitating the attorney-client communication" or “played a ‘necessary’ role in the delivery or facilitation of the emails.” As to the plaintiffs’ son, however, the district court found the magistrate judge had erred in holding that privilege was waived and by failing to apply Section 4548. Specifically, the district court held that plaintiffs provided sufficient evidence to establish that their son’s assistance was “necessary for the delivery or facilitation” of counsel’s emails. The district court also found the magistrate judge had erred “by not finding that [plaintiffs’ son] served as an agent for the Green plaintiffs, and that his involvement in the delivery of the otherwise confidential communications would not constitute a waiver of privilege.”
The court concluded:
A finding that privilege has not been waived in this case is appropriate as a matter of public policy. Email permits attorneys and their clients to engage in prompt communication, often regarding time-sensitive matters. A client lacking proficiency in Internet technology should not be prevented from enjoying the advantages of email correspondence for fear that the necessary assistance of a third party–here, the Green Plaintiffs’ son–in sending or receiving such correspondence will lead to the forfeiture of the attorney-client privilege.