Litigation: Office e-mail to communicate personal matters may waive the attorney-client privilege

Whether privilege is waived can only be determined with a careful sifting of the specific facts in each case

Business executives’ use of office e-mail to communicate in personal matters has become ubiquitous. When those e-mails involve otherwise privileged communications with personal counsel, the executives risk waiving the attorney-client privilege.

In the landmark case involving this issue, In re Asia Global Crossing, Ltd. (PDF), a Chapter 11 trustee sought the production of otherwise privileged e-mails between the five principal officers of the debtor corporation. The Asia Crossing court started from the proposition that an employee may have a reasonable expectation of privacy in a work e-mail account, but that expectation may be reduced by office policies and practices. Thus, the court concluded that the use of an office e-mail system to send privileged communications does not automatically destroy privilege.

Contributing Author

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Richard B. Kapnick

Richard (“Brad”) B. Kapnick is a partner at Sidley Austin LLP. He is an experienced attorney serving as lead counsel in complex litigation matters including...

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Contributing Author

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Courtney A. Rosen

Courtney A. Rosen is a partner at Sidley Austin LLP. She is an experienced attorney whose practice includes complex litigation matters including matters involving the...

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