Court Grants Motion to Strike Privileged Email Inadvertently Sent to Opposing Counsel Using “Reply All”

Charm v. Kohn, 2010 WL 3816716 (Mass. Super. Sept. 30, 2010)

In this case, as the result of using the “reply all” function, defendant inadvertently sent a privileged communication to opposing counsel.  Twenty-eight minutes later, defendant’s counsel sent an email to opposing counsel demanding the email be deleted.  Opposing counsel refused.  Addressing the issue of possible waiver, the court found that defendant and his counsel had taken reasonable steps to preserve confidentiality and granted defendant’s motion to strike the email, which had been attached as an exhibit to an opposition to summary judgment.

Defense counsel sent an email to opposing counsel with a cc to his co-counsel and a bcc to his client.  When responding, defendant used the "reply all" function, thus sending the clearly privileged communication to opposing counsel as well as his own.  Upon realizing his client’s error, defense counsel demanded that opposing counsel delete the email.  Opposing counsel refused.  Thereafter, defense counsel took no further action until the email appeared as an exhibit to an opposition to summary judgment.

Defendant sought to strike the email.  Taking up the issue, the court noted that the issue of inadvertent disclosure in electronic discovery had "received considerable attention" and identified an emerging consensus in law in that context that “a client does not lose the benefit of the attorney-client privilege for an otherwise privileged communication through inadvertent disclosure if the client proves that he and his counsel took reasonable steps to preserve the confidentiality of that particular communication.”  In the present case, the court found the same standard applicable.

Calling it a “close” question, the court determined that reasonable steps had been taken and granted the motion to strike. In so holding, the court identified the facts that favored waiver including counsel’s practice of bcc’ing defendant in communications with opposing counsel – a practice which created the “foreseeable risk that [defendant] would respond exactly as he did,” defendant’s failure to take careful note of the addressees of his email, and counsel’s failure to take action to resolve the issue until the email’s appearance as an exhibit.  Notably, the court pointed out that a similar incident had happened once before, but was unsure if defendant and counsel had been aware of that occurrence prior to the present motion.  Cutting in defendant’s favor was the inadvertence of the transmission, the fact that “his mistake was of a type that is common and easy to make” and the fact that counsel immediately noticed the error and demanded the email’s deletion.

The court concluded that “on balance, and perhaps with some indulgence for human fallibility … [defendant] has met his burden of showing that he took reasonable (although not maximum) steps to preserve the confidentiality of the particular communication at issue” and granted the motion to strike, but warned that “[Defendant] and his counsel should not expect similar indulgence again.  They, and others, should take note:  Reply all is risky.  So is bcc.  Further carelessness may compel a finding of waiver.”