Some traditional practices from the paper era don’t translate well to the world of e-communication. And some are downright dangerous. Back in the day, attorneys would often “bcc” their clients on correspondence to adversaries, an efficient and relatively safe means of keeping the client apprised. No longer in the age of email, where the ability to instantly respond invites quick, at times reactionary, replies that can easily fall into the wrong hands, with potentially devastating consequences.
Such was the case in Charm v. Kohn, 27 Mass. L. Rep. 421, 2010 Mass. (Mass. Super. Sept. 30, 2010). In Charm, defendant Kohn’s counsel sent an email to plaintiff’s counsel, with a copy to co-defense counsel, and a blind copy to Kohn. With the intention of communicating with his counsel only, Kohn inadvertently responded to the email using the “reply to all” function. This circulated his otherwise privileged communication to all recipients of the original email — including opposing counsel. Minutes later, Kohn’s counsel realized what happened and emailed opposing counsel demanding that Kohn’s email be deleted. Opposing counsel declined, and defense counsel did not raise the issue again until the summary judgment stage (at which time plaintiff advised the court that this type of careless transmission had happened another time, even earlier in the case).
Distinguishing this case from the “usual scenario” — in which privileged documents are inadvertently disclosed in the context of voluminous document productions — the court addressed whether defendant and/or his counsel took reasonable steps to preserve the confidentiality of the communication. While the court found the transmission was clearly a mistake that counsel tried to immediately rectify, the court also warned that blind copying one’s client on a email sent to an adversary “gave rise to the foreseeable risk that [the client] would respond exactly as he did.” It also did not help that defense counsel left the matter unresolved until the summary judgment motion. After struggling with the issue, the Court erred on the side of protecting the almost sacrosanct attorney-client privilege, holding that, “[o]n balance, and perhaps with some indulgence for human fallibility,” defendant satisfied his burden of showing that he took reasonable steps to preserve the confidentiality of the communication.
Little solace, however, should be derived from this outcome for those less risk-averse practitioners. The court was quite clear that the defendant and his counsel should not expect similar judicial “indulgence” if this happened again. The lesson for attorneys: “Bcc’ing” clients should clearly be avoided. The few extra seconds it takes to forward a copy of the email is well worth the resulting peace of mind.