 |
Joel P. Surber
Attorney
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:
ATTORNEY-CLIENT
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
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.
TIPS
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.
