Lawyers Beware: Seeking Hard-Copy Printouts of Privileged Emails Can Forfeit the Privilege

December 8, 2021

Many of us (especially the older generation) like to deal with hard-copy printouts of electronic communications. But inattention to the printout process can have disastrous results.

In Fourth Dimension Software v. Der Touristik Deutschland GMBh, Case No. 19-cv-05561-CRB (AGT), 2021 U.S. Dist. LEXIS 174728 (N.D. Cal. Sept. 14, 2021), a company’s president received a privileged email from the company’s former in-house lawyer. Apparently desiring a hard copy, the president forwarded the email to a Berlin hotel front desk with the subject line “Please print one copy. I am waiting at the front desk. Thanks.” The court held that the president waived privilege protection – concluding that he failed to explain why “printing was necessary at all to transmit the information, especially considering [he] was already in possession of [the lawyer’s] email.” Id. at *8-9. In rejecting the company’s argument that the president’s disclosure to the hotel front desk was “reasonably necessary,” the court noted: (1) the president sent the privileged email to “a generic email address that any number of hotel staff presumably had access to”; and (2) “the forwarded email contains no confidentiality warnings or other language alerting the hotel desk recipient(s) not to read it or share its contents and to delete it after printing”; and (3) “it is unclear whether [the president] was even a guest at the hotel.” Id. at *9.

Although this was an extreme example, corporate lawyers and their clients should be wary of arguably similar scenarios. For instance, it would be wise to consider the waiver risk of sending privileged corporate communications (such as board of directors reports) to an outside director’s regular employer.