While she was under investigation by a grand jury, Martha Stewart penned an e-mail that explained the circumstances that led to the I m Clone scandal.

Stewart then dispatched the e-mail to her attorney, and sent a coapy to her daughter, Alexis Stewart.

The e-mail was inadvertently provided to the government, along with a number of other files that had been delivered in response to a subpoena. When the e-mail was identified, government attorneys went back to the court and asked the judge to decide whether they could use the e-mail as evidence.

Stewart’s attorneys argued that the e-mail was under the protection of the attorney–client privilege and the work product privilege. On the other side of that argument, it is clear that the intended recipient of the e-mail was Stewart’s daughter, not her attorney. Should the judge uphold the protection granted by the attorney–client privilege and the work product privilege, or should she allow the government to use the e-mail, because Stewart sent it to a third party? Explain.

United States v. Stewart , 03 Cr. 717 (United States District Court Southern District of New York).