In the event that you have been completely burned out by election news, and have not read a newspaper in several days, you may not be aware that there is presently brewing a major Washington scandal involving the former Director of the Central Intelligence Agency, David Petraeus, and his biographer/mistress, Paula Broadwell. It was not secretly recorded tapes, or video surveillance which exposed the Petraeus-Broadwell debacle – – it was email. Here are some tips about how to properly use your email to avoid an involuntary appearance in your local newspaper, being sued or worse.
- Email Creates Only the “Illusion” of Privacy.
While we sit at our computers and type an email to our friend or client, we presume that no one will read it except its intended recipient. That is a false premise. There are many circumstances in which an unintended recipient can gain access to your email and, therefore, you should always start typing with the thought in mind that your email may one day be published.
Before you sit down to type, think about how your email would look in the New York Times or on a large poster board, in a court room, with a lawyer holding a pointer directed at your words. The cases are legion in which false statements are exposed through the emails that are produced in discovery and used at trial. As a result, make sure when drafting emails that you are comfortable with everything that is being said. Pause before you hit the send key. Take a close look at the actual recipients. Make sure that the email is being sent to the person who is supposed to receive it.
- Why Your Email May End Up in the Wrong Hands.
In the Petraeus case, it appears that the FBI obtained a warrant and served a subpoena directly upon Google. That is right – – Petraeus’ emails were not obtained from either the drafter or the recipient. Instead, the emails appeared to have been obtained directly from the service provider.
Can Google, AOL or Hotmail release your emails to the government without your permission? You bet they can. When the government obtains a search warrant for your email, Google’s lawyers will likely tell Google that those emails must be produced. Similarly, unless a Motion for Protective Order was granted in a civil case, a non-party service provider, where you maintain your email accounts, are subject to be subpoenaed for the production of your emails. Accordingly, it is quite possible that the party whom you oppose in a lawsuit may obtain your emails under certain circumstances.
This rule applies to emails which are even intended to be private. Accordingly, if you are emailing a business partner about a nefarious plan in which you agree to conspire to fix prices for goods sold nationwide, your email may be subject to discovery. If you had any doubt about that, you may want to ask Bill Gates. Mr. Gates was confronted with his emails in a lawsuit that the United States Department of Justice brought against Microsoft for price fixing. Mr. Gates had some explaining to do when his emails, which were produced in discovery, corroborated the Government’s theory about Microsoft’s conduct.
While price fixing is a subject which should probably not be discussed at all, it seems certain that a better way to conduct this discourse would have been over the telephone or in person. This is because memories fade and people have differing recollections about conversations. It takes an awful long time for the print to fade on an email.
- Are my Emails Protected by the Attorney-Client Privilege?
I tell my clients that there is always a risk that their email to me might be subject to discovery. Most lawyers believe that the attorney-client privilege is inviolate. False. The attorney-client privilege has exceptions which crafty lawyers seek to invoke when they request in discovery the production of emails between lawyer and client. For example, when sending email correspondence to your attorney, resist the urge to copy others who do not work for your company or who do not work for the lawyer (don’t copy Mom, for example). This might be construed as a waiver of privilege and, as a result, a Judge might hold that these emails must be produced in discovery.
There is also an exception to the attorney-client privilege known as the “crime-fraud” exception. Under these circumstances, emails will not be protected in the event that a lawyer is being consulted in furtherance of the commission of a crime or a fraud. For example:
Date: November 15, 2012
Bob, it was great to see you last week at the golf tournament. As I explained to you when we met, I have a business in which I represent doctors who submit their claims to Medicare. However, I know that some of the claims are not valid and might be considered fraudulent. I still plan to submit them.
Is there any way for me to protect myself from criminal or civil liability?
Steve’s email will likely not be protected by the attorney-client privilege because he is seeking advice about the commission of something that is likely a crime or a fraud. Thus, while it is evident that Steve should not be engaged in such activity in the first place, Steve should also consider not committing these thoughts to writing in an email to his lawyer. Steve should also not delude himself into thinking that his email will be protected by the attorney-client privilege since it is most likely not protected.
These are just a few samples of the perils of email. Inappropriate emails have now served as evidence in an investigation which has resulted in the resignation of the direct of the Central Intelligence Agency. Do you need a better example of a faux pas? We can learn a lesson from Mr. Petraeus’ email – – if you plan to engage in a socially unacceptable act, or to commit a crime or a fraud, you should consider not putting it in writing.