These days, email between lawyers and their clients is standard; in fact, it’s often the preferred medium of communication. It’s fast. It’s easy. It helps keep things organized. It can be done in a bathrobe. And it saves money.
Oh, and it can also lose the case. And that’s almost what happened in Charm v. Kohn, 2010 WL 3816716 (Mass. Super. Sept. 30, 2010).
As reported by eDiscoveryLaw.com, here’s the genesis of how ordinary, automatic gesture turned into an extraordinary event that may have a rippling effect in courtrooms across the country.
It all started with an email from a defense lawyer to his opposing counsel. Nothing noteworthy there.
That email also had a “bcc:” to the defense lawyer’s client. Perhaps uncommon, but still not headline-worthy stuff, yet.
But things were about to get interesting.
That’s because the defense lawyer’s client – the “bcc” in question – responded to that email, and sent his lawyer a confidential document. And he did that by hitting Reply All.
CHA-CHING! For opposing counsel, it was like striking oil. Okay, maybe that’s a stretch. It was probably more like winning a tasty slot machine jackpot with a quarter found on the floor.
However, lawyers aren’t “finder’s keepers” folks, and so just under half an hour later, realizing (with horror, one imagines) the mistake, the defense counsel contacted the opposing counsel and demanded that the email be destroyed.
Shockingly, opposing counsel disagreed, claiming that the defendant had waived his right to confidentiality. And that’s why and when the good judges at Massachusetts Superior Court got involved.
After hearing arguments in what they called a “close” question, the court decided that both the defense counsel and his client had indeed taken “reasonable steps” to maintain confidentiality, and as such, opposing counsel had to delete the email.
However, before arriving at this decision, the court did acknowledge that the defense counsel’s practice of bcc’ing his client did create a “foreseeable risk that [the defendant] would respond exactly as he did.”
Still, the court found that the defense counsel’s client made a mistake that “was of a type that is common and easy to make.” That, coupled with the fact that defense counsel swiftly caught the error and tried to have it deleted, won the day.
But the victory was not without some stern words from the irritated court, and a pointer to those who might find themselves in a similarly unpleasant situation in the future: “[The defendant] and his counsel should not expect similar indulgence again,” the court rebuked. “They, and others, should take note: Reply all is risky. So is bcc. Further carelessness may compel a finding of waiver.”