Volume 2, Issue 1
January 17, 2003
High Court Rules that E-Mails Can Be Privileged, But is Your Company Doing What is Necessary to Ensure the Privilege is Not Waived?
On December 26, 2002, the Nevada Supreme Court affirmed that a communication between a client and counsel does not lose its attorney-client privilege character by being sent in an e-mail. In The City of Reno v. Reno Police Protective Association, the City was involved in a contractual dispute with a police officers' union that was submitted to the Employee-Management Relations Board (EMRB). During hearing, a dispute arose over the submission into evidence of a memorandum written by the City's labor relations manager, and sent, via e-mail, to the chief deputy city attorney, two deputy city attorneys, and the assistant city manager. The union argued that the attorney-client privilege could not apply to the memorandum, because City policy stated that employees had no expectation of privacy in using City equipment and that "[e]lectronic data transmissions using City hardware or software may be classified as public documents." Therefore, the union argued, the City's labor relations manager could not expect the document to remain confidential when he transmitted it to city attorneys by e-mail. The EMRB agreed, concluded that documents sent by e-mail cannot be considered privileged, and considered the memorandum as evidence.
The Nevada Supreme Court overwhelming disagreed with the EMRB. The Court noted that several states have held that documents transmitted by e-mail are protected by the attorney-client privilege and that e-mails "pose no greater risk of interception or disclosure than other modes of communication commonly relied upon as having a reasonable expectation of privacy." Specifically, the Court held that the City's policy regarding electronic transmission of data was meant to deprive expectations of privacy only as to personal use by employees and to warn employees that the City has the right to review personal documents on City hardware. The policy could not be used to nullify the City's expectation of privacy in electronically transmitting confidential information to its counsel.
This decision is important for Nevada employers, particularly in view of the fact that many clients now request that communications concerning litigation and other legal matters be conducted through e-mail. However, the decision does not give a blanket protection to all e-mail communications, and clients should be aware that e-mails that would otherwise be considered confidential can lose their privileged status through the doctrine of "inadvertent disclosure." In other words, courts will deem a party to have waived the attorney-client privilege applicable to e-mails if they are handled in ways that would indicate that the contents were not meant to remain confidential. E-mails are particularly susceptible to the waiver of privilege given their "informal" tone, and the ease by which they can be forwarded or sent to persons who are not otherwise privy to attorney-client communications-either accidentally or without due consideration.
When communicating by e-mail with any attorney, employers should keep in mind the following:
Particularly sensitive information should not be forwarded by e-mail. Such information should be communicated to an attorney by telephone, or preferably through letters or facsimiles.
If an e-mail is used to seek legal advice, or to update an attorney on the progress of a particular case, always address the e-mail to the attorney exclusively. Other corporate representatives that need to see the e-mail should be referenced in the "cc" address line. No person who is not in a representative capacity should be copied.
When receiving an e-mail from counsel, limit the number of people to whom you forward the e-mail to those who absolutely need to see the e-mail's contents-and who are at a corporate management level. This is particularly so in cases where an attorney requests documents or other information that may be ultimately compiled by an employee other than the one to whom the e-mail was originally addressed. When forwarding the e-mail, always include language that reflects that the request was made by counsel, and all information is to remain confidential.
Any e-mails sent to counsel should include a header indicating that the communication is intended to be confidential and subject to the attorney-client privilege.
Finally, hard copies of e-mails should be maintained confidentially and securely in a separate file.
Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.