Did you hear about the case where the client’s CEO waived privilege by forwarding an email from his company’s counsel to a hotel’s front desk for printing? Whoops!
In Fourth Dimension Software v. Der Touristik Deutschland GMBh, linked below, the CEO of the plaintiff software company (“FDS”) received an email from the company’s former in-house counsel. Because the CEO was traveling in Germany and wanted to review the email before a key business meeting, he forwarded it to the hotel front desk’s email to print. The defendant successfully argued in the district court that forwarding the email to the hotel front desk waived attorney-client privilege.
Applying California law, the Northern District of California concluded that the dominant purpose of the attorney-client relationship was to provide legal advice notwithstanding that the attorney served as FDS’ former in-house counsel. The court next addressed the question whether any privilege was waived when the company’s CEO forwarded the email to the hotel front desk for printing while he waited. Under the California Evidence Code, a disclosure to a third person may not waive the privilege where it is “reasonably necessary for the transmission of the information or the accomplishment of the purposes for which the lawyer is consulted.” This may involve disclosure to clerks, secretaries, interpreters and others. On the other hand, disclosure to “unnecessary” third parties of attorney-client communications destroys confidentiality. The court concluded that FDS failed to demonstrate that disclosure of the email to the hotel’s general email address, without any confidentiality warning alerting the recipient not to read or share the contents and to delete it after printing, was necessary to transmit the information. As a result, the court found that the CEO’s transmission of the email to the hotel’s email address was not protected, and thus constituted a waiver of the privilege, and directed the disputed email to be produced.
What are the takeaways from this decision?
First, counsel your clients about the scope and limitations of the attorney-client privilege. Make sure they understand that disclosure to third parties will likely be deemed to waive the privilege.
Second, consider to whom you are sending emails. A generic hotel email address that goes to an unnamed desk clerk is neither specific enough nor reasonably necessary.
Third, consider how your email is labeled. Emails conveying confidential or privileged information should ideally be prominently so labeled.
Fourth, consider what other safeguards may be taken before forwarding privileged emails to third parties. Perhaps the outcome in the FDS case would have been different if the email was properly labeled as attorney-client privileged, and the CEO forwarded the email to a specific person at the hotel (as opposed to a generic email address for the hotel’s front desk), then ensured the email was not read by the hotel desk clerk, and was immediately deleted after being printed.
Remember that there is no “road warrior” exception to the rules governing the attorney-client privilege when clients or lawyers are traveling.
Last modified: November 9, 2022
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