Can E-mail Be Protected by Attorney-client Privilege?

Writing in the October issue of the newsletter of the Advocacy, Practice and Procedure Committee, Daniel J. Scully Jr. and Mary Dirkes of Clark Hill, Detroit, discuss the question of e-mail and privilege:

In today's society, attorneys, like all other business people, are required to utilize the most recent technological advances to remain competitive and cost efficient. One recent technological advancement is the use of electronic mail, commonly known as e-mail. E-mail is a means of transmitting messages or computer files between computers. According to an article by Harry M. Gruber, "E-Mail: The Attorney-Client Privilege," in 66 George Washington Law Review 624 (1998), as of early 1996, there were 45 million users of email, thus demonstrating that e-mail is becoming the communication method of choice for many businesses.

How they travel

E-mails can be transmitted by a variety of methods, perhaps the most popular method being over the Internet. An e-mail transmitted via the Internet is sent as a "plurality of packets of information." Each packet of information contains a portion of the e-mail message, together with the destination and return address for the e-mail. The data packets are then sent over the Internet through a multitude of computers, stored temporarily, and then routed to successive computers until each packet reaches its destination. Upon reaching the destination, the data packets are combined and the message is distributed to its recipient. See Malvern U. Griffin & Aaron P. Maurer, Netethics: Concerns Regarding EMail and World Wide Web Use by Attorneys, 59 Alabama Lawyer 44, 45 (1998).

Other methods of sending e-mails externally include proprietary e-mail systems and direct telephone line connections. Sending e-mails using a private service generally is considered more secure than sending e-mails by the Internet because the recipient, who must be a subscriber to the same service used by the message's sender, typically must enter a password in order to retrieve the message.

Finally, e-mails can be sent on an internal-only system, which does not allow communications to or from the outside world.

There are safeguards

There are safeguards to protect against the unauthorized and/or unintended viewing of e-mails by third parties. Perhaps the most effective method is encryption. An encrypted e-mail is coded through the use of an algorithm. Only the intended recipient can decipher the code and read the message. There appears to be a debate among the commentators on the feasibility of encryption, however, as both the sender and the recipient must have encryption software.

E-mails also can include a digital signature that enables the recipient to determine if the message has been altered during its transmission. Companies also routinely establish "firewalls" that prevent intruders from infiltrating a company's network at the point the network connects to the Internet. Finally, many firms protect e-mail exchanges by requiring keyboard and software passwords, which are changed from time to time to restrict access to the network.

E-mail has advantages

Despite security concerns, communicating by e-mail provides many advantages over other methods. First, it tends to be less costly and faster. E-mails can be sent at anytime, regardless of time zones, the day of the week, or holidays. They can include attachments, which allows the recipient to download and edit a document without the need of inputting the document into the recipient's computer system.

By sending a document as an attachment to an e-mail, the recipient can print out the attachment as an original, and this can be extremely helpful for last-minute court filings. In addition, because of the Internet, users can access their e-mails while away...