The attorney-client privilege is intended to protect communications between an attorney and his/her client. The Supreme Court stated that the privilege exists to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” See Upjohn Co. v. United States, 449 U.S. 383 (1981). In Semsysco GMBH, et al. v. Global Foundries Inc. et al., the Honorable Marcy S. Freidman, showed us how that privilege can be easily lost.
So it is important to have an understanding of what constitutes a waiver of the attorney client privilege. In the Semsyco it was the client, not the attorney who voluntarily disclosed privileged communications. The court reiterated the “general rule,” which applies to both attorneys and clients:
“A disclosure of a privileged communication will operate as a waiver of the attorney-client privilege is subject to an exception where it is shown that the client intended to maintain the confidentiality of the document, that reasonable steps were taken to prevent disclosure, that the party asserting the privilege acted promptly after discovering the disclosure to remedy the situation, and that the parties who received the documents will not suffer undue prejudice if a protective order against use of the document is issued.”
Further, the Court reiterated that “the party who asserts the privilege has the burden of establishing that it has not waived the privilege.”
Here, the Court found that plaintiffs did not meet their burden in establishing that the privilege was not waived when the CEO forwarded an email chain containing attorney client privileged communications to the opposing side, pre-litigation, seeking a potential settlement. Instead, the Court found that even by intentionally forwarding the “top email” of the email chain and “inadvertently” forwarding the privileged communications, the CEO waived the privilege. The forwarding of the email chain was intentional, and the CEO did not state that he was unaware of the privileged communications below the top email.
The plaintiffs also failed to meet their burden of acting promptly to remedy the situation after discovering the disclosure. Even though plaintiffs’ counsel requested that the email be returned within 48 hours after receipt of a letter from defendants’ counsel advising that they have waived their privilege, the plaintiffs did not make a showing that prior to receipt of the letter, the CEO was unaware he had forwarded the email chain. This means the burden to act promptly starts as soon as the party should have knowledge the communication was disclosed, not necessarily when the opposing side puts you on notice. In this case, that occurred when the email was initially sent.
Takeaway: the lesson here is be careful what you forward. Whether in litigation or not, attorneys and clients should make sure never to forward privileged communications to anyone outside the attorney-client relationship. All emails to an outsider should be conveyed in a new email chain. Nonetheless, mistakes do happen, but you must act promptly to rectify the mistake. You should not wait until the mistake is pointed out, hoping nobody would notice. If you don’t act promptly you will lose your privilege.