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 copy 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 su b poena. 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 daug h ter, not her attorney.

Should the judge uphold the pro tection 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).