The Delaware Court of Chancery recently ruled that the use of a company email address to send confidential information to an attorney did not negate the protection of the attorney/client privilege, based on the facts in Lynch v. Gonzalez, No. 2019-0356-MTZ, Letter Decision (Del. Ch. Nov. 18, 2019).
This decision is noteworthy because, although other Delaware decisions have addressed this issue of whether an email sent from a company email address to a private attorney waives the privilege, this carefully measured ruling adds color and texture to a very nuanced but important issue of interest to all those laboring in the Delaware litigation vineyards.
The decision in this matter involves a hotly contested dispute over ownership interests in a holding company that owns several companies in Argentina. A grasp of the somewhat complicated facts in this case is necessary in order to fully appreciate and fully understand the nuanced and thorough analysis in this decision, but for purposes of extracting the essential nuggets of the decision, which related to whether the attorney/client privilege applied for purposes of discovery issues, the key fact is that an email was sent using a company email address and to an attorney for the employee.
The issue: whether there was a reasonable expectation of privacy that would satisfy the requirements for a communication protected by the attorney/client privilege when an email was sent to a private attorney from an employee’s company email address.
Notable Legal Principles:
- The court began its analysis with the definition under Delaware Rule of Evidence 502 of the attorney/client privilege, which provides protection for confidential communications between the client and a lawyer for the purpose of facilitating legal services. The burden of proving the privilege applies to the party asserting the privilege. A key factor in determining whether or not the communication is confidential is whether there is a reasonably objective expectation of confidentiality or privacy. See Slip op. at 9.
- Prior Chancery decisions have addressed the issue of whether using the email address of an employer to send confidential information to an attorney will allow for protection under Rule 502. Prior decisions have applied a four-factor test, which also allows a “statutory override” such as the one used in this case, if an applicable statute impacts the issue. See page 11 and the cases cited at footnotes 60 and 61, including the Delaware Chancery decision of In re Information Management Services, Inc. Derivative Litigation, 81 A.3d 278 (Del. Ch. 2013). See also, Kalisman v. Friedman, a Chancery decision highlighted on these pages, and cited at footnote 123 of the instant case regarding exceptions applicable to prior periods before a current employer was controlled by a different party.
- The court determined that the law of the country of Argentina applied and an applicable statute provided a reasonable expectation of privacy, and therefore the application of the four factors otherwise applied was superseded by the Argentinian statute and, thus, the emails at issue were determined to be privileged.