MOTION IN LIMINIE GRANTED AS TO SEAMAN'S EMAIL TO HIS ATTORNEY THAT WAS PRODUCED BY ACCIDENT.
DANIEL L. JOHNSON, Plaintiff, -against- SEA-LAND SERVICE,INC., Defendant
99 Civ. 9161(WHP)(THK)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 11447
August 8, 2001, Decided
August 9, 2001, Filed
PROCEDURAL POSTURE: In a Jones Act action filed by plaintiff seaman who claimed that he was injured while employed by defendant, the seaman brought a letter-motion seeking to preclude the employer from using at trial an e-mail that was claimed to be privileged, and that was inadvertently produced in discovery.
OVERVIEW: The employer opposed the motion, arguing that the seaman waived any privilege as to the document, that the document did not contain a privileged communication, and that any claim of privilege was overcome because the document fell within the crime-fraud exception to the attorney-client privilege. The court granted the seaman's request to preclude the use of the document. The document was an e-mail sent from the seaman to his attorney, and was sent in response to counsel's inquiry for background information. Therefore the document was covered under the attorney-client privilege. The e-mail did not demonstrate probable cause to believe that either the seaman or his doctor engaged in, or was prepared to engage in, a fraud, and there was nothing that suggested that it was a communication seeking advice on how to perpetuate or cover up a fraud. Thus, the crime-fraud exception did not apply. Under the circumstances, the production of the e-mail was inadvertent and did not waive the attorney-client privilege. The failure to see and withhold the e-mail was, at most, careless, but its production did not evince such extreme carelessness to permit waiver of privileged communications.
OUTCOME: The seaman's application to preclude the employer from using the e-mail at trial of action was granted.
