November 11, 2009
Cell Phones and Attorney-Client Privilege
A very interesting and lengthy article on how new technology poses some difficult questions about the attorney-client privilege. With everyone e-mailing, texting and talking on mobile devices, in-house counsel may hope that these communications are confidential and privileged in case of litigation. But are they? The answer from the courts to date: It depends. Law.com reports.
... Several Courts have recognized increased expectations of privacy and confidentiality for communications and information stored and transmitted on cell phones. In light of the fact that cell phones today broadcast with encrypted digital signals, a court would likely rule that an attorney has a reasonable expectation of privacy in discussions over a digital cell phone.
But even that ruling would not protect a lawyer talking loudly over his or her cell phone in a taxi or airport lounge. Clearly transmission is only part of the issue. Also of concern is whether the conversation is being conducted in a way that can be overheard.
... The next attorney-client privilege frontier: mobile data devices like the Blackberry and the iPhone, which combine telephone and e-mail services with Web browsers, contact databases, and calendars. Many lawyers already entrust volumes of attorney-client communication and work product to these devices. The good news is that in 2009's S.E.I.U. v. Roselli, a California federal district court explicitly permitted a party to withhold information stored on a Blackberry or PDA on the basis of privilege.
Read full article in Law.com
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