Email cc’d to non-lawyer forfeited attorney-client privilege, but work product doctrine saved the day

Schanfield v. Sojitz Corp. of America, 2009 WL 577659 (S.D.N.Y. March 6, 2009).

Sojitz Corporation fired its employee Schanfield. Six months later, Schanfield sued for wrongful termination. As many litigants do prior to filing suit, Schanfield sought the advice – via email – of two attorneys in his family. These communications discussed the facts of the case, underlying strategy, and thoughts on retaining counsel. Schanfield copied his non-lawyer sister on these messages.

Schanfield withheld these emails from production. Sojits moved to compel. Schanfield argued that the messages were protected by the attorney-client privilege because they were “confidential and explicitly for the purpose of procuring legal advice about his claims in [the] litigation and the retention of counsel.”

The court found that by copying his non-lawyer sister on these communications, Schanfield forfeited the attorney-client privilege. However, the court also found that the emails were protected by the work product doctrine. The messages were “clearly prepared in anticipation of litigation,” and by sending them to his close relatives, Schanfield did not significantly increase the likelihood that Sojitz would obtain the information. Absent a showing of substantial need for the messages, the court denied Sojitz’s motion to compel.

The obvious lesson to be learned from the case is that one must use discretion in deciding who to copy on email messages. Lawyers are expected to understand the contours of the attorney-client privilege and avoid unnecessary cc-ing. But prudent counsel will instruct and remind his or her clients of how easy the protection of the attorney-client privilege can be destroyed, as this case demonstrates. This is an issue which should be included in any corporate email risk management training or program.

Policy of no modification saves website operator from spoliation sanctions

GW Equity LLC v. XCentric Ventures LLC, 2009 WL 62168 (N.D. Tex. January 9, 2009)

Information on a company’s website is relevant in numerous types of cases. But website content is sometimes dynamic, and the mechanics of preservation can be tricky. A recent case from the U.S. District Court for the Northern District of Texas provide some guidance.

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