Lawyers regularly receive emails from clients that contain earlier email threads that are forwarded in the course of seeking legal advice. Sometimes these earlier threads appear as attachments. Other times, they are embedded beneath the content of the most recent thread. Regardless of the form of the threads, parties involved in litigation will often seek to withhold the entire chain from the opposing party. The problem lies in determining how to properly log an email chain to preserve the privilege that attaches to the earlier email threads when they are forwarded along with a privileged email.
In a recently published opinion from the Eastern District of Pennsylvania, the court found that each individual thread must be logged. Rhoads Industries, Inc. v. Building Materials Corp. of America, 254 F.R.D. 238, 241 (E.D. Penn. 2008). If an underlying email is not logged, any privilege that otherwise might have attached to it is waived.
If it doesn’t make immediate sense to you why someone might not want to log each individual thread, consider that the underlying emails probably have to be produced in their original, non-forwarded format. By comparing the log with the emails that have been produced, the opposing party can determine what emails the client forwarded to the lawyer. Because the opposing party has access to these emails in their original format, the opposing party might be able to determine what the lawyer and client knew and when they knew it, including key facts in any dispute.
Rhoads made many bloggers “Year in Review” lists in December and January because the court, in an earlier opinion, engaged in a lengthy analysis of the factors to be considered under Federal Rule of Evidence 502 in determining whether Rhoads took reasonable steps to prevent inadvertent disclosure and to rectify the mistake upon discovering it. In that earlier opinion, the court decided that Rhoads had waived the privilege that might otherwise apply to several documents that its attorneys had failed to log.
The court was subsequently called upon to clarify whether or not Rhoads had waived the privilege with respect to email chains, some threads of which were logged, others of which were not. Although the court noted that the attorney-client privilege may attach to an otherwise non-privileged email when the email is forwarded along with a privileged email, the court found that Rhoads had waived the privilege for any unlogged threads. The court ordered Rhoads to produce the email chains, but authorized Rhoads to redact any threads its lawyers had previously logged.
The moral? If one email in a chain is privileged, counsel needs to take care in considering whether all of the emails in the chain are privileged and treat them accordingly. If they are not all treated as privileged and logged as such, counsel risks waiving the privilege as to the entire email string.