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N.Y. C.P.L.R. § 4548 (1999) states that a privileged communication does not lose its privileged character for the sole reason that it was sent by e-mail or because persons necessary for the delivery or facilitation of the e-mail may have access to its content. Accordingly, the transmission of a privileged communication through unencrypted e-mail does not, without more, destroy the privilege.
Debtor filed a Chapter 11 petition that was later converted to Chapter 7. Trustee advised the officers to vacate debtor's offices immediately. Counsel for the officers learned that certain hard copy documents and e-mail messages on debtor's e-mail servers, containing allegedly privileged communications, had been left behind. Trustee caused subpoenas duces tecum to be served on the officers and the consultant, calling for the production of the alleged privileged communications. The officers and the consultant refused to produce the e-mails and documents.
Did an employee's use of the company e-mail system to communicate with his personal attorney destroy the attorney-client, work product or joint defense privileges in the e-mails where the employee and his former employer's trustee have become adversaries?
The court, assuming that the e-mails and documents were otherwise privileged, held that the question of privilege came down to whether the intent to communicate in confidence was objectively reasonable. The court held that it was unable to conclude as a matter of law that the officers' use of debtor's e-mail system to communicate with their personal attorney eliminated any otherwise existing attorney-client privilege. The court did hold that any privilege as to the e-mails between the officer, their counsel, and the consultant were waived because the e-mails were voluntarily sent to the consultant and counsel for debtor.