Archive: December 28, 2010

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Kids’ Access to Mom’s Email Account Waives Attorney-Client Privilege

Kids’ Access to Mom’s Email Account Waives Attorney-Client Privilege

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:

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