Consider the following scenario. Opposing counsel and you are having a candid email discussion about the strengths and weaknesses of your respective positions in an effort to narrow the issues that the judge in your case will need to decide. A day or two after the exchange, you receive a copy of an email from opposing counsel to the judge in which he writes: “Attached for your reading is an email string between me and adverse counsel which frames the discovery dispute and positions of each party. I’m supplying it now for your pre-hearing review, if you’re able, because I plan to raise the dispute at the proceeding for your ruling then or later.”

The email catches you by surprise. You never authorized opposing counsel to send this information to the judge, and you never discussed doing so. As a result, you advise opposing counsel that you object to the email as an improper ex parte communication. In response, he advises you, “There was nothing covert or underhanded about my action. You had full knowledge of my email transmittal to the judge because you were, of course, openly copied on it and it was sent to you simultaneously. Further, I believe my email message itself is materially accurate in all respects.” To the attorney who sent the email, the communication was not ex parte because he sent you a copy, even if he transmitted portions of the emails without discussing it or asking for your approval.

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