Commercial Litigation and Arbitration

No Waiver of Attorney-Client Privilege under New York Law Where Son Received Email and Forwarded It to Parents, But Parents’ Disclosure to Financial Advisor Did Effect Waiver

From Green v. Beer, 2010 U.S. Dist. LEXIS 87484 (S.D.N.Y. Aug. 24, 2010):

The magistrate judge rejected Plaintiffs' assertion of attorney-client privilege with respect to email communications shared with certain persons who are neither attorneys nor parties in this litigation. These persons are identified as: (1) Paul Lenker, financial advisor to Plaintiffs James Michael and Nena M. Dunigan; (2) Brenda Lazzaroni, a certified public accountant who possessed financial information regarding Plaintiffs Dean and Kathleen Janssen; (3) Terry Nielsen, the Chief Financial Officer of Ace Tomato Co., Inc., a company owned by Dean and Kathleen Janssen; 1 and (4) Daniel Green, the son of the Green Plaintiffs.

Plaintiffs' Financial Advisors have stated in their respective affidavits that they received particular emails from Plaintiffs' counsel, and that they were assisting in the transmission of factual information between Plaintiffs and Plaintiffs' counsel. There is, however, no evidence that their involvement was necessary to ensure the provision of legal advice, or to facilitate the delivery of any emails.

In contrast, Daniel Green, the son of the Green Plaintiffs, received email communications from counsel, which he then provided to his parents. He explained in his affidavit that his technical assistance was necessary for his parents to timely receive the email communications from counsel***.

[T]he magistrate judge's order is: (1) AFFIRMED with respect to the documents shared with Plaintiffs' Financial Advisors, whose involvement was not necessary to assist in the delivery of electronic communications or in the provision of legal advice to Plaintiffs; and (2) REVERSED with respect to the emails sent by Plaintiffs' counsel to the Green Plaintiffs through their son, who served as an agent to provide necessary assistance in the timely delivery of the emails to his parents. ***

3. New York's Statute on Attorney-Client Privilege and Email Communications

New York State law provides additional guidance as to the attorney-client privilege's [*10] application in the context of electronic communications, including email. Section 4548 of the New York Civil Practice Law and Rules provides:

No communication . . . shall lose its privileged character for the sole reason that it is communicated by electronic means or because persons necessary for the delivery or facilitation of such electronic communication may have access to the content of the communication.


The magistrate judge committed clear error by failing to apply Section 4548 of the New York Civil Practice Law and Rules, the relevant state law on attorney-client privilege and electronic communications. The magistrate judge instead applied only the two-part test for the exception to a waiver of privilege, finding that Daniel Green's involvement was not necessary to the provision of legal services given that alternative means of communication were available. This analysis is incomplete in the context of electronic communications, for which Section 4548 applies. Plaintiffs have provided sufficient affidavit evidence that the Green Plaintiffs lack proficiency in the use of email, and that their son's assistance was "necessary for the delivery or facilitation" of counsel's emailed communications to the Green Plaintiffs. See N.Y. C.P.L.R. § 4548. Thus, under Section 4548, the Green Plaintiffs have not waived the attorney-client privilege based on Daniel Green's involvement in the delivery of the disputed emails.

Share this article:


Recent Posts