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GMail and Waiver of the A-C Privilege

by Bret Fausett at 03:24PM (PDT) on April 24, 2004 | Permanent Link | Cosmos | Digg This

I'm at a firm retreat this weekend in Napa Valley and a conversation over lunch today turned to Google's GMail. One interesting question came up that I haven't seen discussed anywhere before: would the use of GMail by an attorney or a client waive the attorney-client privilege? In other words, does allowing a third-party to "read" mail via a computer program constitute a voluntary waiver of the privilege?

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Re: GMail and Waiver of the A-C Privilege

by Tom on Sat 24 Apr 2004 04:24 PM PDT | Profile | Permanent Link

Interesting. Did the conversation cover items like spam filtering when it is based on content (Like SpamAssain, etc.)? I know this comparison has been made when discussing Gmail but I wonder if it would fall into a similar category. Basically, does a "machine" reading your mail count the same as a "person" reading your mail? I hope you folks have time to discuss further and post your findings/opinions.

Re: Re: GMail and Waiver of the A-C Privilege

by Dave Ely on Wed 28 Apr 2004 09:44 PM PDT | Profile | Permanent Link

Whoever has to make this argument the first time has a considerable challenge ahead of them.

All mail, unless you are the US government or a seriously large corporation is "read" by a third party (even if it's just the senders MTA and a bunch of anonymous routers as it crosses the net to the wholly owned infrastructure of the receiver).

If Gmail takes off then Hotmail, Yahoo and friends are sure to follow.

What are the legal grounds for maintaining attorney-client privilege if you use something like EarthLink web mail today and how does Gmail somehow step outside of the envelope if it exists?

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