Massachusetts Superior Court judge in the Business Litigation Session has found that a damaging e-mail a defendant inadvertently forwarded to opposing counsel was privileged and should therefore be stricken from the case.

The e-mail was sent after defense counsel blind-copied his client on correspondence with the plaintiff’s lawyer. The defendant then hit “reply all” thinking he was responding to his attorney only.

Plaintiffs’ lawyer Brad A. Compston, who practices at Konowitz & Greenberg in Wellesley Hills, Mass., argued that he should be permitted to introduce the e-mail at trial because defense counsel failed to properly preserve its confidentiality.

But Judge Judith Fabricant disagreed in a ruling she called “close,” deciding that the defendant had taken reasonable, “although not maximum,” steps to protect the attorney-client privilege.

The judge noted that it was the second time in six months the defendant had made such a mistake after receiving a blind-copy e-mail from his lawyer.

“[The defendant] and his counsel should not expect similar indulgence again,” she warned. “They, and others, should take note: Reply all is risky. So is bcc. Further carelessness may compel a finding of waiver.”

The eight-page decision is Charm, et al. v. Kohn, et al.

Lesson learned

Maine-based lawyer David C. Johnson, who with his colleague George J. Marcus represented the defendant, said Fabricant found that his client’s e-mail was always intended to be private.

Judges are hesitant to intrude on the privilege unless a violation is so egregious that they have no choice but to find a waiver, he said.

“The judge’s opinion recognizes that this is something that has happened to all of us once or twice in our lives,” Johnson said. “Because of that, the judge said we will default back to saying that the attorney-client privilege remains in place and those communications will be protected.”

Johnson, who is licensed to practice in Massachusetts, said the experience has taught him a valuable lesson.

“I will no longer blind cc my client in e-mails to the other side, because I don’t want what happened here to happen again,” Johnson said. “From now on, I will send an e-mail to the other side and then send a separate copy to my client to make sure there is not a ‘reply all’ problem again.”

While a handful of lower court rulings in Massachusetts have addressed inadvertent e-mail disclosures made by lawyers, Fabricant is the first judge to answer the question in the context of a communication from a litigant, according to Compston.

Fabricant opted to apply the same “reasonable care” test to litigants as previous courts have done for lawyers, he said.

“The cases out there that are published are ones talking about matters where lawyers are producing thousands of documents and there are the one or two pages that sneak in somehow,” Compston said. “We believed there were some strong factors in our favor, but at the end of the day the judge erred on the side of caution in terms of trying to protect the attorney-client privilege.”

Where the defendant and his counsel had made a similar mistake in the past and had not done anything to change their practices, Compston contended that reasonable steps had not been followed.

“I think this decision makes it pretty clear that when attorneys are communicating with their clients through e-mail, they really don’t ever want to use the bcc,” he said.

Please delete

Earlier this year, Johnson sent an e-mail to Compston in connection with a 2008 complaint over a disputed partnership agreement.

Johnson copied his co-counsel on the e-mail and blind-copied his client, defendant Kohn.

In responding to the e-mail, Kohn hit the “reply all” function on his computer, which transmitted his message to all the parties involved in the suit, including Compston, the opposing counsel.

The communication dealt with a statute of limitations issue, which was material to the case.

Twenty-eight minutes later, when Johnson realized what had happened, he sent an e-mail to Compston demanding deletion, a request that was denied.

Rather than seek prompt judicial assistance, Johnson moved only to strike the e-mail when it appeared as an exhibit to the opposition to his summary judgment motion.

Human fallibility

In striking the e-mail from the case, Fabricant wrote that the attorney-client privilege is “tremendously important” to our legal system. An excessive readiness on the part of courts to find waivers, she said, would erode it.

The issue of inadvertent disclosures has received considerable attention from courts and bar organizations in recent years, particularly as electronic discovery has become increasingly prevalent in civil litigation, Fabricant observed.

The judge found that the defendant never intended to send the e-mail to Compston and said his mistake was an easy one to make.

“Indeed, there may be few e-mail users who have not on occasion used the reply all function in a manner they later regretted,” she said.

As a matter of courtesy, and in recognition of their own vulnerability, the judge wrote that opposing counsel should avoid the temptation to seize opportunities arising from inadvertent disclosures.

On the other hand, a client who seeks to preserve the privilege has a responsibility to be cautious, particularly when using a means of communication that poses known and obvious risks, Fabricant said.

“Lawyers should advise clients to be careful, and should avoid practices that exacerbate risks,” she wrote.

The judge said it appeared from the evidence that Kohn and his counsel were less than vigilant in protecting the confidentiality of their communications.

“[But] on balance, and perhaps with some indulgence for human fallibility, the Court finds that Kohn has met his burden of showing that he took reasonable (although not maximum) steps to preserve the confidentiality of the particular communication in issue,” she said.