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New York Bar Against Waiver of Privilege in Electronic Communications

The New York Civil Practice Law & Rules contain a provision which ensures that privilege is not waived for emails between a client and his or her attorney that are transmitted by an internet service provider.

§ 4548. Privileged communications; electronic communication thereof. No communication privileged under this article 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.

NY CPLR § 4548 has also been interpreted by the New York courts to bar waiver when emails are sent by a third party for a client.

In Green v. Beer, (S.D.N.Y. 2010), it was ruled that this section of the CPLR protected emails sent by a son on behalf of his parents to their attorneys, where the mother and father were not proficient in the use of email. Judge Kimba Wood reversed a decision by Magistrate Judge James Francis (who has issued several key decisions bearing on electronic discovery) and ruled that the parents' access to alternate means of communicating with counsel doesn't mean CPLR § 4548 shouldn't apply. The opinion notes that the Greens had a reasonable expectation of confidentiality in the emails the son helped send and states:

"A finding that privilege has not been waived in this case is appropriate as a matter of public policy. Email permits attorneys and their clients to engage in prompt communication, often regarding time-sensitive matters. A client lacking proficiency in Internet technology should not be prevented from enjoying the advantages of email correspondence for fear that the necessary assistance of a third party – here, the Green Plaintiffs’ son – in sending or receiving such correspondence will lead to the forfeiture of the attorney-client privilege."

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