Email has become an essential means of communication. But it presents fertile ground for mistakes and missteps by lawyers and clients who might compromise attorney-client privilege by hitting the "Send" button before taking adequate precautions as to the recipients, as well as for unintended recipients who encounter such a mistake. Privilege issues stemming from email blunders and carelessness can create serious concerns for counsel and their clients, with courts often having to determine whether the disclosure of communication impairs privilege.

A collection of three cases from the past four years, discussed below, illustrates that email slip-ups are more common than one may think, and that even the briefest lapse in judgment or attention to detail can lead to highly problematic outcomes. The trio of cases is only a small sampling of the pitfalls that may affect even the most prudent attorney, and should suggest caution as to what accidents to avoid and what steps to take to prevent loss of privilege.

Mistaken Recipient

When sending an email, the recipient field presents a threshold hazard zone. In Simmions v. Pierless Fish, 592 F. Supp. 3d 68 (E.D.N.Y. 2020), on the eve of mediation, defendants' counsel mistakenly sent an email intended for her client to plaintiffs' counsel, attaching specific litigation strategies and a detailed damages analysis. Defendants' counsel's client and plaintiffs' counsel had the same first name.