Confidentiality and Email Chains, Stronger than the Weakest Link

Quickly becoming an old cliché, recent changes in technology have presented novel questions in evidentiary law.  The most recent in Pennsylvania being the use of chain emails and the attorney-client privilege.

One might suspect that using chain emails to various recipients would waive the attorney client privilege, but Pennsylvania courts have not been so quick to jump to that conclusion.

In Rhoads Industries v. Building Materials Corp. of America, 254 F.R.D. 238 (E.D.Pa. 2008), the U.S. District Court for the Eastern District of Pennsylvania analyzed the extent to which communications may be withheld, and the proper way to assert the privilege, in situations involving email strings where some messages in the string contain communications with counsel and some do not.  The court explained, subject to other prerequisites for the application of the privilege:

1. Where an email string eventually sent to an attorney was initiated to gather facts for the purpose of obtaining legal advice, the email string is the modern-day equivalent of a face-to-face meeting with an attorney, such that all communications on the string, and not merely the communications with the attorney, can be withheld as privileged;

2. In such a situation, all such communications must be logged separately on a privilege log, although the separate log entries need not disclose that the communications were forwarded to an attorney; and

3. These principles do not apply where messages in the email chain are subsequently altered.

This legally generous ruling is most likely the result of Pennsylvania's application of the Attorney-Client Privilege law in the context of corporations.  When the client is a corporation, the privilege extends generally to communications between its attorney (including both in-house and outside counsel) and agents or employees authorized to act on the corporation's behalf.  As to non-attorney corporate employees, communications retain their privileged status only if the information is communicated on a need-to-know basis.

A recent article in the Legal Intelligencer, available here, explained:

The Rhoads court noted that the end result of an email string seeking legal advice is similar to a face-to-face meeting in a conference room between an attorney and a client.  With the modern-day innovation of email, persons working in different locations can communicate for the purpose of obtaining legal advice, and not all of those communications will be direct communications with attorneys.  Often, after all of the facts are discussed among executives, the string will be sent to an attorney for legal advice. Other times, an attorney is included and copied in on the string earlier in the electronic conversation.  Thus, as a general matter, if the purpose of an email string is to gather facts and communicate those facts to the attorney for legal advice, the email communications serve as the functional equivalent of a face-to-face meeting, and although the facts contained in the emails are discoverable, all of the messages, not only the compilation of messages sent to the attorney, are privileged.

The Rhoads decision is an example of one court's application of the existing law governing attorney-client privilege to the evolving world of e-communication and e-discovery.  As the law continues to develop in this area, companies should evaluate whether there are changes in their "style" of dealing with internal electronic communications that would tend to increase or decrease the confidentiality of privileged communications, based upon the reasoning of Rhoads.  Issues such as how to address explicit direction not to share certain information, could turn the issue on it's head.  By having a policy in place, a corporation will be best prepared to garner the most protection possible.

42 Pa.C.S. §5928, states: "In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client."

The presence of a third party during attorney-client communications will generally negate the privilege. However, communications with a subordinate such as a paralegal are generally protected if the subordinate is acting as the agent of the attorney. Likewise, the presence of a third party such as a consultant does not destroy the privilege where that party possesses a commonality of interest with the client.