'You've Got Mail' But Is It Privileged?

E-mail evidence is one of the newest and sharpest arrows in the government's quiver. In recent years the government has won several convictions based on little more than damning e-mail evidence. Nonetheless, people continue to use e-mail casually or even thoughtlessly, producing a data stream of potential admissions. To make matters worse, with the proliferation of portable e-mail devices, such as the ubiquitous Blackberry, the attention paid to each e-mail diminishes while the amount sent rises dramatically. The Blackberry is so addictive it's been dubbed the “Crackberry.” More than ever, people are using portable e-mail devices owned by their employer to send slapdash messages about sensitive matters without a second thought for whether the e-mail truly is confidential. This recklessness extends even to e-mail communications between attorneys and clients — a troubling development because, while clients write things to their attorneys that they never would want a judge or jury to read, such communications, if sent over company e-mail systems, may not be privileged. Attorney-client e-mail may wind up in the jury room, much to the chagrin of its author and contrary to an attorney's obligation to ensure that client communications are handled in a confidential manner.