An evolution in how courts interpret the confidentiality prong of the attorney-client privilege, which requires that both the client and attorney have an expectation of confidentiality in the communication for which the client seeks to assert the privilege, has been underway for more than a decade.

The current trend suggests that a company's attorney-client privilege may be lost if the company transmits the otherwise privileged information using third-party email accounts or servers that are accessible to others.

Originally published in Law360 - May 2020.