How Carefully Must a Divorcing Spouse Hide Privileged Communications from a Snooping Mate?

March 16, 2011

Clients (and their lawyers) must carefully protect privileged communications – one court said that companies must treat privileged communications like “crown jewels.” But where do courts draw the line between adequate protection and the type of sloppiness that might forfeit the privilege?

In Parnes v. Parnes, 915 N.Y.S.2d 345, 349 (N.Y. App. Div. 2011), the court dealt with a divorcing husband and wife who continued to share what the court called a “common office in the shared home.” When the wife found an e-mail between her husband and his lawyer on the desk, the court found that “by leaving a hard copy of part of a document on the desk in a room used by multiple people [including a nanny and babysitters], defendant [husband] failed to prove that he took reasonable steps to maintain the confidentiality of that page.” Id. In contrast, the court found that the husband had taken reasonable steps to keep his computer e-mail account confidential, by setting up a new account and checking it only from his work. The court explained that “[l]eaving a note containing his user name and password on the desk in the parties’ common office in the shared home was careless, but it did not constitute a waiver of the privilege.” Id. The court explained that the husband “still maintained a reasonable expectation that no one would find the note and enter that information into the computer in a deliberate attempt to open, read and print his password-protected documents.” Id. Although his wife did exactly that, e-mails on the husband’s computer remained privileged and therefore unavailable for the wife’s use in the divorce litigation.

Because courts disagree about exactly what steps privilege holders must take to preserve the privilege, it is always best to err on the side of caution.