CPLR § 4547 as approved by the executive committee of the NYSBA on Jan 24, 1997

 No communication otherwise privileged under this article shall lose its privileged character for the sole reason that it is communicated by electronic means or because persons necessary for the delivery or facilitation of such electronic communication may have access to the content of the communication. 

Supporting Statement

 This measure, introduced at the request of the Committee on Civil Practice Law and Rules of the New York State Bar Association, is intended to preserve and promote the use of electronic media such as e-mail. CPLR art 45 contains certain privileges for confidential communications between certain classes of people, such as lawyers and clients, doctors and patients, spouses, clergy and so forth. These communications, however, to maintain their privileged character, must be confidential and not made in a manner that does not reasonably assure privacy. 

    Communications by e-mail raise significant concerns. One the one hand, a e-mail message, even one that is intended to remain private, can remain on the server of various computer systems. It not uncommon for an e-mail message sent over the Internet to pass through several different computer systems. Although no case has addressed it, there is a significant issue as to whether such communication has the requisite degree of confidentiality to insure that a privilege that attaches is not otherwise waived.     

    On the other hand, e-mail communications have become effective means of communication which should be encouraged. This method fosters not only easier -- and thus more frequent -- communication, but quicker as well. E-mail is also effective for sending documents and drafts of documents to and from clients, sometimes over long distances. 

The purpose of the privilege requires that there be some degree of assurance that whether a particular communication can remain confidential. Thus, the bill would ensure that, merely because a communication took place over e-mail, or by similar electronic means, it would not lose its privileged nature. 

    Nothing in the legislation is intended to otherwise change the law regarding privilege or address whether other forms of communications are sufficiently confidential as to be privileged. Nor does the proposal deal with the duty of a professional to preserve client's secrets. While a communication over e-mail may be sufficiently confidential that it does not waive the evidentiary privilege that attaches to it, the obligation of a professional to keep confidences may require that certain highly confidential matters not be communicated in this form, even though it would be privileged. A confession of a crime, the communication of a sensitive trade secret or similar information ordinarily should be communicated in a method designed to ensure that no third party has access to the information under any circumstances, regardless of whether the communication would be deemed privileged or not. 

Comments on this bill 

Comment of Paul H. Aloe

Further Comment of Paul H. Aloe

Comment of Lynne L. Harrison

Further Comment of Lynne L. Harrison

Comment of Joseph D. Bermingham, Jr

Further Comment of Joe Bermingham

Comment by Prof. Oscar Chase

Comment of Sharon Gerstman

Comment of Edward G. "Ted" Burton

Comment from the General Practice Section

Comments from The Maine Bar Association

Send us your Comment

For further reading see Jones, A Lawyers Duties with Regard to Internet E-Mail (August 16, 1995)

Also, see Electronic Communication Privacy Act, 18 USC Section 2517(4)

Research and other stuff:

Research  from Thomas Mead Santoro

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