Electronic Discovery Law

Willis v. Willis, 914 N.Y.S.2d 243 (N.Y. App. Div. 2010)

Plaintiff filed suit against her former husband and his current wife alleging defamation.  Specifically, plaintiff alleged that defamatory statements had been made in an email addressed to her and sent to her account - an account which was also regularly used by the former couple’s children.  One of the children read the email.  Plaintiff alleged that the act of sending the email to that account constituted publication for purposes of her claim.

In the course of litigation, plaintiff used the same account to communicate with her attorneys.  Defendant sought production of those emails contending that they were not privileged.  Plaintiff sought a protective order.  The trial court ordered their production.  On appeal, the court found that plaintiff “failed to meet her burden of demonstrating … that the email communications … were made in confidence” and reasoned:

According to the plaintiff, her children did not merely know the password to the e-mail account that she used to communicate with her attorneys, but the children regularly used the e-mail account, and, the plaintiff alleged, the defendants' mere act of sending an e-mail addressed solely to her on that account constituted "publication" for purposes of establishing a defamation cause of action.  Furthermore, the individuals who had unrestricted access to the plaintiff's attorney-client communications were not unrelated to the plaintiff's adversary or to her lawsuit (cf. Stroh v. General Motors Corp., 213 A.D.2d 267, 267-268).  While these individuals were the plaintiff's own children, they were also the children of her adversary, and the plaintiff's lawsuit is grounded upon the publication of the allegedly defamatory e-mail to one of the children.  There is no evidence, moreover, that the plaintiff requested that the children keep the communications confidential.  Under these circumstances, it cannot be said that the plaintiff had "a reasonable expectation of confidentiality" in the e-mail communications between herself and her attorneys, which communications were freely accessible by third parties.

Accordingly, the trial court’s order compelling the emails’ production was affirmed.