Last week's Privilege Point summarized a Southern District of New York decision finding that the plaintiff's lawyer husband was inside privilege protection. Shih v. Petal Card, Inc., No. 18-CV-5495 (JFK) (BCM), 2021 U.S. Dist. LEXIS 19266 (S.D.N.Y. Oct. 6, 2021) (Moses, J.).
The court then addressed the privilege implications of plaintiff's husband's use of the Buckley Sandler law firm email system (where he was a summer clerk at the time). The court bluntly held that "the spousal privilege does not protect the emails sent to and from [plaintiff's lawyer husband] in the summer of 2017 over his buckleysandler.com email account." Id. at *31. The court applied the widely accepted standard articulated in In re Asia Global Crossing, Ltd., 322 B.R.D. 247 (Bankr. S.D.N.Y. 2005) — agreeing with defendants that "the use of an employer's email account negated any reasonable expectation of confidentiality and thus vitiated the privilege." Id. at *32-33. Fortunately for the plaintiff and her lawyer husband, the court held that the more robust work product protection survived — because his use of his law firm's email system had not "substantially increase[d] the opportunity for potential adversaries to obtain the information" (quoting another court's articulation of the work product waiver standard). Id. at *34-35 (citation omitted).
Lawyers using their law firms’ email systems should keep in mind the privilege waiver risks, even when communicating with their spouses.