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Not so privileged: Massachusetts court cracks down on shared emails

3/31/25

By: Josette E. Brooksbank and Jessica Gray Kelly

In Allen v. Christensen, the Massachusetts Superior Court issued a discovery ruling clarifying the distinction between attorney-client privilege and the work product doctrine. The decision underscores the risks of sharing privileged communications with third parties—even close family members. 

The case involved ten emails that plaintiff Kirk Allen withheld from production, asserting protection under the work product doctrine. The emails had surfaced through a third-party subpoena but were missing from Allen’s own email records, raising questions about potential spoliation. After an in camera review, the court concluded that only one email—a chronology prepared by Allen specifically for litigation—qualified as protected work product. 

The court found the remaining nine emails to be factual communications or forwarded documents sent to counsel in the course of seeking legal advice. While such emails may fall under the attorney-client privilege, that privilege was waived when Allen forwarded them to family members. The court emphasized that the work product doctrine is not triggered merely by sending existing documents to a lawyer, and unlike the attorney-client privilege, it is not waived unless disclosure increases the risk of adversary access. Thus, the court ordered the production of all but one email. 

This decision reinforces that work product protection is limited to documents actually prepared in anticipation of litigation—such as legal memos, chronologies, or attorney assessments. Merely providing factual background to counsel does not suffice. And when clients forward such materials to non-lawyers, including relatives, they risk waiving any privilege that might otherwise apply. 

In an era where email communications are easily shared and forwarded, Allen v. Christensen serves as a timely reminder: privilege can be fragile, and maintaining its protection requires careful handling of client communications. 

For more information on this topic, please contact Jessica Kelly at jessica.kelly@fmglaw.com, Josette Brooksbank at josette.brooksbank@fmglaw.com or your local FMG relationship partner.