The dangers of BCCing your client

Charm v. Kohn

Case/Rule Name: Charm v. Kohn, 27 Mass. L. Rep. 421 at *5-6(Mass. Super. Ct. 2010).

Summary: In a contractual dispute, defendant's counsel sent an e-mail to opposing counsel and blind copied (bcc) his client. His client than proceeded to respond to the e-mail and sent it using the "all reply" function which sent a copy of his privileged communication to opposing counsel.

Defendant's counsel immediately sent a request to opposing counsel to delete the privileged e-mail, but counsel refused to do so. This was the second time this had happened. The Court felt the question was close but refused to find waiver in the case but issued a warning for any future disclosures.

The Court stated, "[o]n balance, and perhaps with some indulgence for human fallibility, the Court finds that Kohn [defendant] has met his burden of showing that he took reasonable (although not maximum) steps to preserve the confidentiality of the particular communication in issue. The Court will therefore allow the motion to strike, and will preclude further use of the e-mail. Kohn [defendant] and his counsel should not expect similar indulgence again.

They, and others, should take note: Reply all is risky. So is bcc. Further carelessness may compel a finding of waiver."