Background

In May 2019, Dworkin Construction Corp. and Kelly’s Sheet Metal entered into a subcontract for Kelly’s to perform all heating, ventilation and air-conditioning work in connection with a construction project at 2162 Broadway in Manhattan. Kelly’s was alleged to have breached the subcontract by, amongst other things, failing to: timely submit required technical data and shop drawings; adhere to the overall job schedule; send a sufficient number of employees to the job site; follow construction plans and specifications; correct defective work timely and complete its contractual scope of work as scheduled. Accordingly, Dworkin commenced a breach of contract lawsuit against Kelly’s seeking to recover delay damages, as well as the expenses it incurred in attempting to bring the project back on schedule. Kelly’s denied the claims, and the parties engaged in discovery.

During the course of discovery, Dworkin’s counsel blind-copied Dworkin’s president on an email to counsel for Kelly’s regarding a discovery schedule. Dworkin’s president sent an email to that counsel inquiring about the merits of the lawsuit (and a related action in New York City Civil Court) by using “reply-all” to that unrelated email—which included counsel for Kelly’s—rather than simply reply, or draft a whole new email. Moments later, Dworkin’s counsel sent an email to counsel for Kelly’s advising of his client’s inadvertent email, and demanded that counsel for Kelly’s confirm the deletion of the email. Rather than delete the email, counsel for Kelly’s responded that the “reply-all” email waived the attorney/client privilege, and demanded that Dworkin’s counsel preserve all communications between him and Dworkin’s client because counsel for Kelly’s reserved the right to “seek other communications between you and your client.”

Upon counsel’s refusal to destroy the inadvertently produced email—and upon his claim of a right to seek other communications between Dworkin and its counsel—Dworkin moved for an order of protection clawing back the privileged email, and protecting Dworkin against the disclosure of other attorney/client privileged emails. Kelly’s opposed, contending that the use of a blind-copy email negligently heightened the chances of precisely what occurred here (broadcasting a privileged response to a non-privileged email) such that the use of the blind-copy should be deemed a waiver of the privilege. Kelly’s also contended that regardless of the use of the blind-copy by Dworkin’s counsel, the sending of the privileged email by Dworkin’s president formed an independent waiver of the privilege such that Kelly’s was required to disclose other attorney/client communications.

Decision

The court granted Dworkin’s motion and directed that counsel for Kelly’s destroy the privileged email, holding that the circumstances of the inadvertent disclosure—and counsel’s notification, moments later, of the inadvertent disclosure and attempt to claw the communication back—evidenced that the disclosure was never intended to waive the attorney/client privilege. The court held that to deny the motion would produce a Draconian result and countenance what the court described as “gotcha litigation tactics,” rather than deciding cases on their merits.

Comment

While this matter arose out of a typical construction dispute, its lesson is not limited to those in the construction industry: before communicating on an instant medium such as email, one should pause a moment to ascertain that the recipients are only those who are intended. Such a pause will also give the sender the benefit of one last review to be sure that what is in the email is what is intended—with the ancillary benefit that the sender will be afforded one last opportunity to tone down anything intemperate, or anything else that the sender may come to regret later on. While the court here noted “bcc’ing a client is not a good idea” because it opens the door to just such an inadvertent “reply-all” response, it saved Dworkin’s president from the effects of a waiver by noting the speed of its counsel in acting “just 15 minutes after the inadvertent communication.”

The lesson to be taken from this case is not that the court saved Dworkin’s attorney/client privilege, but what should be done to prevent someone from having to scramble in order to do so. Here, aside from the fortuity of Dworkin’s counsel immediately seeing the email and having the ability to immediately respond, it was only directed to counsel for both Dworkin and Kelly’s—so Dworkin’s counsel was able to immediately spot the problem. However, what about situations where counsel may not immediately see the email (which encompasses not only the obvious vacation/illness out of office, but also periods when counsel may be busy such as being on trial, in a series of depositions, or otherwise committed and unable to be alerted to emails in real time), or where the unintended recipient’s email address is buried in with a group of 20, 30, or more intended recipients such that the inclusion of the unintended recipient is not readily apparent? There are other situations that may also come to mind where the speed standard referenced by the court here may not be able to be met, even though the communication is clearly inadvertent. Those situations, we would posit, are more common than the one here, where the error was immediately apparent and able to be responded to in real time. Accordingly, the best advice is to take that moment to double check not only the content of the email, but who it is going to before hitting the send button—and only use “reply all” when you truly want the reply to go to more than one recipient.

About the author: Thomas H. Welby, an attorney and licensed professional engineer, is General Counsel to the Construction Industry Council of Westchester & Hudson Valley, Inc., and the Building Contractors Association, and is the Founder of, and Senior Counsel to the law firm of Welby, Brady & Greenblatt, LLP, with offices located throughout the tri-state region. Gregory J. Spaun is general counsel to the Queens and Bronx Building Association and an attorney and a partner with the firm, co-authors this series with Mr. Welby.