Attorney-client privilege and emails (matrimonial action) (Third Dep’t Jan. 13 2011)

Wife’s discovery of e-mails between husband and consulted attorney held partly privileged and partly no.  Plaintiff-wife in matrimonial action discovered a page of an e-mail on defendant-husband’s desk.  Email was between husband and attorney with whom he was conferring about his divorce.  Wife, while searching for the remainder of the letter, discovered the user name and password for husband’s e-mail account, which she used to access the account, printed the e-mails correspondence between him and the attorney, and turned them over to her counsel.  Wife then amended the complaint and her attorney subpoenaed Van Ryn for a deposition and to produce documents.  Held: Husband’s email communications with attorney were protected by attorney-client privilege except for the single page which wife found on husband’s desk in the family room and which husband failed to show that he took reasonable steps to maintain the confidentiality of that page.  Husband’s leaving the username and password for his email account, however, on his desk did not waive the privilege vis-à-vis the balance of the emails.  Husband’s email account was newly established and accessed only from his workplace computer.  Leaving the user name and password on his desk was careless but did not waive the privilege.  Parnes v Parnes, 80 A.D.3d 948, 949 (N.Y. App. Div. 3d Dep’t July 13, 2011)

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