Admissibility of Evidence - Privilege - Electronic Communication of Privileged Communications - Civil Practice Law and Rules § 4548
The Civil Practice Law and rules provide that no communication privileged under article 45 of the Civil Practice Law and Rules 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.[1]
The purpose of CPLR 4548 was to recognize the widespread commercial use of e-mail. This provision, in effect, constitutes a legislative finding that when the parties to a privileged relationship communicate by e-mail, they have a reasonable expectation of privacy. As with any other confidential communication, the holder of the privilege and his or her attorney must protect the privileged communication; otherwise, it will be waived. For example, where a spouse sends her spouse a confidential e-mail from her workplace with a business associate looking over her shoulder as she types, the privilege does not attach.[2]
[1] Formerly CPLR 4547, added L.1998, c. 156, § 1, eff. July 7, 1998. Renumbered L.1999, c. 56, § 1, eff. May 25, 1999.
[2] Scott v Beth Israel Med. Ctr. Inc., 17 Misc 3d 934, 938 (Sup Ct 2007)
The Civil Practice Law and rules provide that no communication privileged under article 45 of the Civil Practice Law and Rules 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.[1]
The purpose of CPLR 4548 was to recognize the widespread commercial use of e-mail. This provision, in effect, constitutes a legislative finding that when the parties to a privileged relationship communicate by e-mail, they have a reasonable expectation of privacy. As with any other confidential communication, the holder of the privilege and his or her attorney must protect the privileged communication; otherwise, it will be waived. For example, where a spouse sends her spouse a confidential e-mail from her workplace with a business associate looking over her shoulder as she types, the privilege does not attach.[2]
[1] Formerly CPLR 4547, added L.1998, c. 156, § 1, eff. July 7, 1998. Renumbered L.1999, c. 56, § 1, eff. May 25, 1999.
[2] Scott v Beth Israel Med. Ctr. Inc., 17 Misc 3d 934, 938 (Sup Ct 2007)
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