During a recent consultation with a potential client in a plaintiff personal injury case, the following question came up: “Attorneys Can Read my Personal Email?”
The response: “Sure, Attorneys Can Read Personal Email, if it relates to your case.” Unfortunately, I always receive an expression of amazement followed by a frown in response.
So why is this such a shock? Well, logically it makes sense that if someone sends an email from a personal email address, the
contents must be “confidential,” right? Unfortunately, this is usually not correct. But more important for the prospective client, this can lead to a lot of problems during the discovery phase of a case when all attorneys are required to disclose any materials relevant to the case.
A recent decision in S.S. Dweck & Sons v. Hasbani, 12 Civ.6548 (SDNY July 27, 2013) is a good illustration of the problems that may come up.
S.S. Sweck & Sons came about because the plaintiff claimed that a former employee stole more than $400,000.00 worth of goods from the plaintiff’s company. In response, the defendant former employee claimed that he did not steal any goods, but in fact was sold those goods. It seems like a clear case where it will be the plaintiff’s version of the facts (his “word”) versus the defendant’s version of the facts (his “word”). However, and quite clever in the context of this particular case, plaintiff’s attorneys made a motion to have copies of all of the defendant’s personal personal emails, even ones sent from their personal accounts (think GMAIL, AOL or HOTMAIL), turned over during discovery.
Deciding that privacy concerns take the back seat to relevant disclosure and discovery, Southern District Judge Robert Sweet ordered the defendant former employee to turn over all relevant personal emails relating to the central issue of the litigation.
A very simple tip can be taken away from this case. If you use email to communicate (and we all do), even if you put a notice of confidentiality or privilege disclaimer at the bottom of your emails, DO NOT put anything in the email (i.e. in writing) that you do not want to come out in open court and used against you!