Hotels, Privilege, and Unexpected Waiver
Lawyers have returned to the road. We are traveling for court hearings, depositions, client meetings, mediations, and conferences. And that travel necessarily includes hotel stays. But, as we know, the work never goes away. While we are in those hotels, we are still working—taking a video deposition while attending a conference, sending numerous emails, drafting that contract, and revising that brief.
We often go to that so-called hotel “business center”—that two computer, one printer closet—to print that contract or brief or print emails and documents to take to the next day’s meeting, deposition, or court appearance.
The attorney–client privilege and work-product doctrine travel, too. They go where lawyers go. And despite using hotels for a workspace, we sometimes forget that hotels are not our office. That business closet is not our private office. The hotel staff are not our staff. And when we forget this, the chance for privilege waiver increases dramatically. And if you think the risk is small, think again.
Years ago, I was in the office of counsel for my adversary, a governmental agency, waiting to defend my client’s deposition. While waiting in a public space in this government building, my law partner called and we discussed the case, including information about the upcoming deposition. I intentionally left the public area and took the call in a more secluded and private area.
Opposing counsel later filed a motion to compel my law partner and me to reveal the substance of that conversation. Her argument? That she could hear our conversation, including the comments of my partner on the other end of the line. We actually briefed and argued that motion. While I was a bit nervous—I suppose I could have taken the call in a more secluded area, I was able to prove up the steps I took to preserve confidentiality and the judge denied the motion.
It was the classic eavesdropping situation by my opposing counsel, and courts typically don’t allow eavesdroppers to breach a lawyer or client’s privileged communications. New York and California, for instance, have statutes prohibiting exactly that type of conduct.
The eavesdropping exception, however, only goes so far. When lawyers intentionally or carelessly—even if innocently—allow third parties, including staff and others in that hotel “business center,” to see their privileged communications, that privilege may evaporate.
Two hotel stories illustrate the point.
A New York Hotel Story
In the 1980s, a wealthy businessman, Fred Weisman, had a long-term business—and personal—relationship with Sachiko Bower. On a business trip, they stayed together in a hotel suite because, as Bower put it, they were “sleeping together.” Bower remained at the hotel when Weisman left for a business meeting and began straightening the businessman’s papers. When doing so, she saw a letter from Weisman’s attorney to Weisman that mentioned her name, so she surreptitiously made a copy.
When the relationship ended, hotly contested litigation erupted, with Bower claiming that Weisman agreed to give Bower an interest in his business affairs and other financial-security perks so long as she did not remarry or leave the United States. Bower’s attorneys sought to depose Weisman about his attorney’s letter that she took from the hotel suite.
Weisman claimed privilege and countered any waiver argument by arguing the “eavesdropper exception.” The court, however, stated that “the eavesdropper rules does not … in any way reduce the client’s need to take all possible precautions to ensure confidentiality.” For example, if “the communication takes place in a crowded elevator the client should expect that there will be persons listening and he will be taken not to have intended the statements to be in confidence.”
Here, the court found that Weisman’s leaving the “letter spread out on a table in a room in a suite in which Bower” was staying did not “reach the level of taking all possible precautions to ensure confidentiality.” Had Weisman placed the letter in a briefcase or a drawer, the court said, then he would have had a better argument for the eavesdropping exception. But he left the letter on a table and waived the privilege by doing so. Bower v. Weisman, 669 F. Supp. 602 (SDNY 1987).
A Berlin Hotel Story
More recently, the CEO of Fourth Dimension Software (FDS) was staying at the Berlin Hilton as he prepared for a next-day meeting with another company to discuss licensing of FDS’s software. FDS’s General Counsel had sent the CEO a privileged email about the potential business relationship. Needing a copy for the upcoming meeting, the CEO forwarded the privileged email to the Berlin Hilton’s front desk personnel at the general email box, firstname.lastname@example.org, with this subject line:
Please print one copy. I’m waiting at the front desk. Thanks.
If the CEO needed the email printed, isn’t it “reasonably necessary” to ask the front-desk staff to do that for you? Apparently not. The court said that the CEO did not need it printed because he was “already in possession” of it. Nor did the CEO seem to worry, the court noted, about maintaining confidentiality by sending the email to a general inbox:
On the contrary, the forwarded email contains no confidentiality warnings or other language alerting the hotel desk recipient(s) not to read or share its contents and to delete it after printing.
So, the court ruled that the CEO disclosed a privileged communication to a third party and waived the privilege. Think about that—the hotel front-desk personnel almost certainly did not read the email, care about the email, or disclose it further; rather, they were performing a service. Yet, the court found waiver. Fourth Dimension Software v. Der Touristik Deutschland GMBH, 2021 WL 4170693 (N.D. Cal. Sept. 14, 2021).
It may seem silly. It may seem overkill. It may seem form-over-substance and a bit illogical. But it’s real. Lawyers working in hotels, other offices, or any non-private space risk privilege waiver when they lack diligence in protecting their confidential communications and work product from the eyes and ears of any third party.
In other words, lawyers must “take all possible precautions to ensure confidentiality” or face an anxiety-inducing motion to compel. I went through it. Hope you can avoid it.