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Martha Stewart Wins a Round on E-mail Privilege

By Jeralyn, Section Crime in the News
Posted on Mon Oct 20, 2003 at 11:18:27 PM EST
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The Judge presiding over the Martha Stewart case ruled in her favor today. At issue was an e-mail she sent to her lawyer, indisputably privileged. But, then she forwarded the e-mail to her daughter. Martha argued forwarding the e-mail did not vitiate its confidentiality and the Judge agreed. She upheld it under the attorney work-product doctrine.

Stewart composed an e-mail for attorney Andrew Nussbaum of Wachtell, Lipton, Rosen & Katz on June 23, 2002, outlining her version of events on the ImClone sale. She forwarded the same e-mail to her daughter, Alexis Stewart, the next day ....Analyzing the work-product doctrine in the context of an "unusual set of facts," Southern District Judge Miriam Goldman Cedarbaum said that "although the e-mail to Stewart's daughter does not realistically risk revealing the thought processes of Stewart's attorneys, I conclude that it is protectible as preparation for litigation."

"By forwarding the e-mail to a family member, Stewart did not substantially increase the risk that the Government would gain access to materials prepared in advance of litigation," the judge said, citing an affidavit from Stewart saying her daughter was a "valued" confidant and counselor, and by "sharing the e-mail with her, I knew she would keep its content strictly confidential."

"The disclosure affected neither side's interest in this litigation: it did not evince an intent on Stewart's part to relinquish work-product immunity for the document, and it did not prejudice the Government by offering Stewart some litigation-based advantage," Cedarbaum said. "Accordingly, I hold that Stewart did not waive work product protection over the June 23 and June 24 e-mails."

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