What happens when a client receives an e-mail from a lawyer but doesn’t know how to open the attachment? Well, if that technologically naive client happens to have a son or daughter somewhere nearby, the client just might enlist the offspring’s assistance. But if the child opens the documents and delivers them back to the client, has that act breached the attorney-client privilege?

At the blog Practical Ediscovery, Evan Brown of the law firm Hinshaw & Culbertson reports on just such a case. The husband-and-wife plaintiffs were not savvy with computers and did not know how to open the attachments to the e-mails their lawyer sent them. They sought help from their son, who opened the documents and gave them to his parents. (Brown does not say the son’s age.)

During discovery, defendants sought to compel production of the documents, claiming the son’s intervention waived any privilege. A federal magistrate agreed and ordered production of the documents. But on review, the district judge overruled the magistrate and revoked the order to compel.

The judge based his ruling on two grounds, Brown writes. First, he concluded that the son acted as an agent for the plaintiffs. Second, he relied on New York’s civil practice rule 4548, which says the privilege is not lost if the content of an electronic communication is accessed by “persons necessary for the delivery or facilitation” of the communication.

The judge also cited public policy, writing, “A client lacking proficiency in Internet technology should not be prevented from enjoying the advantages of e-mail correspondence.”

The case is Green v. Beer, No. 06-4156, 2010 WL 3422723 (S.D.N.Y. Aug. 24, 2010). More details about it are available at the Practical Ediscovery blog.