Electronic Discovery and Evidence

Intercepted E-mail Admitted as Evidence

Intercepted e-mail is upheld in sex case. Admissible: Utah judge rules peeking at the messages was not illegal. "On his breaks, Bryan Vance Jones liked to log on at the Sumner Library near Seattle to check his electronic mail. Occasionally, he would access his e-mail on the computers at work.
    Although his e-mail accounts were protected by passwords, the Washington state man might have gotten careless one day. Someone - maybe a librarian, co-worker or a friend - was able to get into his e-mail last year and peruse his correspondence. . . "

Waiver of Attorney Client Privilege - Header

All of us have read the following disclaimer or something similar at the end of e-mail messages.

The information contained in this message may be protected by the attorney-client privilege. Please immediately reply to the sender of this e-mail if you have received it in error, then delete it. Thank you.

I would suggest that such a disclaimer be inserted at the beginning of the e-mail to alert an individual before reading the e-mail. It would seem that after reading the e-mail and then reading the disclosure - that the bell has already been rung.

For electronic discovery and electronic evidence purposes, the insertion of the header at the beginning would support an argument of nonwaiver of the attorney/client privilege.

Work Product Protection Does Not Extend to Pre-Representation E-mail Communications

Benton v. Brookfield Properties Corp., 2003 WL 21749602 (S.D.N.Y July 29, 2003).

Defendants Must Return Documents

United States v. Rigas, 2003 WL 22203721 (S.D. N.Y. Sept. 22 2003). After the United States Attorney's office received 23 hard drives through a discovery request they were placed on the agency's network system. A paralegal inadvertently copied privileged government information onto the same area where the hard drives were stored. These "hard drives" were subsequently disclosed to the defendants who moved the court to retain the privileged material. The court held the disclosure of the privileged material did not waive the privilege.