A Florida defendant forwards an email (not an accident) to a plaintiff that contains discussion between defendant's attorney and said defendant. Is the forwarded forwarded client-attorney privileged?
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The defendent forwarded the email? It's almost certainly fair game then - the defendant released the information, why would there be any privilege in that situation? The privilege exists to prevent an attorney from being forced to give up information about their client against their clients wishes, but in this case the client published the information, not the attorney.– user4210Commented Aug 18, 2019 at 20:24
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@Moo Please consider add a formal answer to the thread and a set of any supporting examples with links? Thank you– gatorbackCommented Aug 18, 2019 at 21:43
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Which jurisdiction? Though i will add that if its the defendant who sent it to the claimant, the defendant can be taken to have waived his privilege.– Shazamo MorebucksCommented Aug 18, 2019 at 23:36
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@ShazamoMorebucks Good question. OP updated to reflect Florida– gatorbackCommented Aug 19, 2019 at 13:34
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1 Answer
No
Voluntary disclosure, even accidental, by the client ends privilege.
The information may still be confidential (inadmissible) if it happened in the appropriate circumstances, for example, as part of a mediation.
Edit
A recent decision of the High Court of Australia has determined that a litigant can use material that comes into its possession that would have attracted privilege irrespective of how this happens. In that case, the law firm was hacked by an unknown party, the information was given to a journalist and published and the litigant wanted to use it in their case - they were allowed to do so. The court decided that privilege is not a legal right that could found a course of action. Basically, it only prevents the compulsory production of such information - it doesn't protect the information itself.
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Can I assume that this is true in all US states? I should have confined the question to Florida. Is there any support (links) for the statement? Thank you Commented Aug 18, 2019 at 21:50
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I don't think that ruling will apply in any US state, Australian law is a bit different on such matters. The basic point that disclosure waives privilege will i think be true all over the US. Commented Aug 20, 2019 at 2:18
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But then the Australian case was about a situation where a third party stole the information, where the question was about a defendant intentionally giving that information away. Commented Aug 20, 2019 at 8:09