Found Email Treasure: but Can You Use It?

• Publication year: 2012
• Pages: 10

Found Email Treasure: But Can You Use It? No. 81 J. Kan. Bar Assn 1, 10 (2012) Kansas Bar Journal January, 2012

Thinking Ethics

By J. Nick Badgerow, Spencer Fane Britt & Browne LLP, Overland Park, nbadgerow@spencerfane.com

Given the ubiquity of email communications in the 21st century, there is no doubt that much useful evidence, admissions, and information can be found in the electronic communications of one's opposing party in litigation. One such situation is found where an employer finds an email in its own computer system sent to an employee by her attorney. Locating and mining the gold is easy enough. But questions may arise as to the propriety of using what is found.

A recent ABA Opinion^[1] finds no ethical violation in the use of privileged emails properly received or found by an opposing party in its own email system. But, as the Opinion points out, there are still risks based on judicial precedents going beyond the Model Rules.

1. Rule 4.4(b), KRPC. Rule 4.4(b) of the Kansas Rules of Professional Conduct requires a lawyer "promptly [to] notify the sender" if the lawyer comes into possession of a privileged communication which the receiving lawyer "knows or reasonably should know ... was inadvertently sent."

2. Op. 11-460. Focusing on this concept of "inadvertence," the ABA Opinion finds that, when an employer locates an attorney-client communication in its own email system sent by an employee's lawyer to the employee-client, Rule 4.4(b) does not apply, "because emails between an employee and his or her counsel are not "inadvertently sent' by either of them." This position is supported by previous ABA opinions, which held that an attorney may ethically review metadata imbedded in documents which were intentionally produced,^[2] and that an attorney has no ethical obligation to advise an opposing counsel that he has received privileged materials from some third-party, "if the materials were not provided as "˜the result of the sender's inadvertence.'"^[3] Especially when there is a properly-drafted company policy, an employee generally has no expectation of privacy in emails sent to or received from the computer provided by his employer.^[4]

However, Op. 11-460 wisely notes that this is not the end of the inquiry. Following the advice in the Comment to Rule 4.4, the Opinion notes that courts may require lawyers to notify an opposing party's attorney, and the rules of civil procedure may require notification of the...