Pride and privilege

18 Feb 2013

A recent case in Canada reminds us once again to take care in the sending of emails as, in this particular matter, even legal privilege could not prevent the email from playing its part in potentially disastrous consequences for the employer.

In Fernandes v Marketforce Communications, the employer sent an email to its lawyer seeking advice on terminating an employee's employment.  Rather unfortunately, the employee in question was inadvertently copied in on the email.

Despite several recall attempts and an email to the employee requesting that they delete and ignore the email, perhaps understandably, the employee read the content.

After taking advice from her own lawyer, the employee ceased to work for the employer, claiming that her employment had been terminated by way of that email.  For obvious reasons, the employee relied heavily upon this email in bringing her claim and it was essential that it be determined whether legal privilege applied. 

It was determined that the email was part of a privileged solicitor/client communication and the inadvertent disclosure did not waive the privilege.  It was also concluded that the error was excusable, noting that there was an immediate attempt to retrieve the information.

However, the Judge then went on to consider the issue of whether the preservation of the privilege would be unfair to the employee.  It was noted that the reading of the email would have affected the employee's state of mind towards her employer, in particular, the element of trust.  It was, therefore, considered that it would be unfair for the Judge hearing the matter to have a less than complete understanding of what had been learned from the email and how it may have affected her response.  It was considered to be in the interests of justice and fairness to allow the Judge to have access to the email.

Our view:

Although this is a Canadian case, it certainly shines a light on the issue of legal privilege which could be, in some cases perhaps, too heavily relied upon.  It is also a stark reminder to check those confidential emails before sending!