eLessons Learned - Full Article

Privileged Communications Have to Actually be Privileged to be Immune

Apr 1, 2013
eLessons, In-House Counsel, Outside Counsel, Upper Management

    Authored By: Chrissy Caputo

    Citation: Kenney, Becker LLP v. Kenney et. al, 34 A.D.3d 315 (N.Y. 1st Dept. 2006)

    Employee/Employer Implicated: In-house Counsel, Kenney Becker employee, upper-level management

    e-Lesson Learned: Communications via e-mail between attorneys and their client’s employees are not automatically protected.

    Tweet This: Think twice before e-mailing what you don’t want disclosed.

The brief order by the First Department Appellate Division doesn’t delve into much background (or really any background at all) as to the facts of the present case, however, it does shed some light on discovery matters. The prior order had directed the plaintiff to turn over a certain e-mail as part of the discovery, and moved the deposition of the defendant to New York instead of Florida.

While the decision doesn’t explain what seemed to be unconvincing arguments as to why the defendant couldn’t be deposed in New York, it does give us a modest bit of background as to the e-mail. The e-mail was sent by an employee of the plaintiff to plaintiff’s attorney after the present litigation had already begun. Now that sentence alone triggers, in the minds of law students anyway, the idea that the e-mail is protected by attorney client privilege.

Presumably the plaintiff made the argument that the e-mail was protected. The only problem with the plaintiff’s argument was that the court didn’t agree. The e-mail was recounting conversations between the plaintiff’s former employee, the plaintiff’s principal and one of the defendants. The court had an in camera review of the email (the Justices looked at the email first before the defendants were allowed) and decided that the email wasn’t privileged or work product.

At the end of the day, the e-mail was to be turned over and the deposition was going to take place in New York.

 

Chrissy Caputo, a current Seton Hall University School of Law student (Class of 2013), focuses her studies in the area of labor and employment law. Prior to law school, Chrissy was a 2010 graduate of Lafayette College, where she earned a B.A. with concentrations in History, Government and Law.

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Comments (2):

  1. Reply
    TateRehemet said:
    April 8, 2013 at 11:42 AM

    Very Interesting read, keep up the good work

  2. Reply
    Courtney said:
    April 18, 2013 at 4:40 PM

    It’s interesting that the court felt that it could draw a line here as to what is and is not privileged. For the most part, we are taught that communications between a client and attorney are protected from the opposing counsel. I wonder what the courts reasoning was when they determined that this was admissible.

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