Joel P. Surber
Parker Lawrence, Cantrell & Smith
In today’s cyber world, e-mails are a common method for communications.  While e-mails increase our efficiency and accessibility, they can cause problems when disputes arise and litigation is necessary. Discretion is paramount when discussing important matters via e-mail, as most communications are admissible in litigation, unless they fall within limited privileges.  

Generally speaking, when a lawsuit is pending, e-mail communications involving employees and agents
of Ghertner & Company and board members of Homeowners Associations are admissible and can be discovered (turned over) pursuant to Rule 26.02(1) of the Tennessee Rules of Civil Procedure 26.02:

“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and electronically stored information, i.e. information that is stored in an electronic medium and is retrievable in perceivable form, and the identity and location of persons having knowledge of any discoverable matter. . .”

The only communications that are not discoverable are those that are privileged.  “Privileged communications,” usually fall within either “attorney-client communications” or “work-product” communications:

This privilege is designed to protect communications between the attorney and client, and covers the communications in both directions. A privileged attorney-client communication requires a communication (written or oral), made between privileged persons, in confidence, for the purpose of seeking, obtaining or providing legal assistance to the client. This privilege only protects the contents of the communication, and not the factual circumstances surrounding the communication. Privileged persons include: the attorney, the client, and agents of either the client or attorney.  Relaying information originally provided by attorneys between non-attorneys is acceptable as a privileged communication, but it is important to emphasize the confidential nature of the communication.  Independent contractors can also be included in a privileged communication as long as that outside party is specifically authorized to coordinate legal issues and the transmission is necessary.  Communications to third parties are generally not regarded as privileged, unless that third party’s presence was somehow necessary for the rendering of legal advice. Thus, e-mails between Board Members solely for the purpose of discussing an issue will likely be discoverable should litigation become necessary.

Work-Product Privilege is not as strong as attorney-client, but it is broader in scope.  There are 3 elements required for Work Product: documents and tangible things, prepared in anticipation of litigation or for trial, and prepared by or for a party or that party’s representative.  This privilege extends to materials prepared “by representatives of a party,” and is therefore not limited to materials prepared by an attorney. There must be a tangible risk of litigation rather than broad general legal exposure.  In order to preserve the privileged nature of email communications that are intended to be privileged based on the work product doctrine, it is important to make clear that the document is being prepared in anticipation of litigation and that the documents are intended to be confidential in nature.

Great care must be taken to ensure that e-mails are drafted with the idea that they may ultimately be seen by other, unintended recipients. The following are some helpful hints
for the use of e-mail communications:

  • To be safe, limit the frequency of e-mail communications. If you need to “back & forth” an issue, consider meeting in person. 
  •  Use discretion at all times when discussing important matters via email.  Discretion includes what is said, and to whom it is said. 
  • Avoid “Reply All” to ensure that communications and documents intended to be privileged remain privileged.
  • Make clear that all attorney-client communications are confidential, and are related to the purpose of legal advice, even when such communications are being relayed and discussed internally.
  • For work-product documents being prepared with an eye toward litigation, make clear that these documents or communications are being prepared in anticipation of litigation.