Work computers, IT systems, company policies, and their effect on otherwise privileged communications.
Communications between a client and his/her attorney(s) are generally protected by the well-recognized attorney-client privilege. Importantly, however, the attorney-client privilege, along with other recognized privileges, are only as strong as the confidentialities (or expectations of privacy) associated with the parties’ communications. For instance, it is generally understood that if a third-party is present while an exchange of privileged / confidential information is made with an attorney and the third-party is not an agent of the attorney (generally someone to help with the legal matter) any privilege that may have existed is waived. In other words, a court will likely find a privilege does not exist if a third-party is present or has access to the confidential / privileged information.
While advances in technology have streamlined the ability for clients and their attorneys to communicate worldwide, 24 hours a day, 7 days a week, with the simple click of a button, the same technology has opened the door to new challenges regarding the scope and applicability of the attorney-client privilege. For example, when an employee uses his/her work e-mail (as opposed to a personal e-mail account) to communicate otherwise privileged information with his/her personal attorney, is that e-mail communication privileged? What if the employee’s work computer and e-mail system is monitored by the employer, is the communication still privileged? What if the employer has a policy that bans personal use of the company computer and/or information technology (“IT”) systems? What if IT staff and others have access to the employee’s e-mail account? Under which of these scenarios, if any, will an employee’s e-mail communication remain privileged? Conversely, under which scenario may the employee have opened the door for his/her adversary – in a litigation setting – to obtain copies of the employee’s e-mails despite the fact they were sent to the employee’s personal attorney?
These same questions and issues can also apply to disputing business owners. For example, suppose that A and B are the sole owners in ABC business entity and that A is suing B for Breach of Fiduciary Duty. Furhter suppose that before and during the litigation A and B use their business’ e-mail account to communicate with their respective personal attorneys regarding the dispute. Suppose also that A is responsible for keeping up ABC’s IT systems and/or has complete access to the business’ e-mail, which B knew or should have known. Are B’s e-mails to his attorney privileged or has the privilege been waived? What if A has reviewed B’s e-mails while maintaining ABC’s IT system, are the e-mails still privileged? What about A’s e-mails, are they privileged?
These and other unique questions are being litigated more and more in courts across the Nation. And not surprisingly, a bright-line rule has not surfaced. While a bright-line rule has yet to surface, several courts have applied what have become known as the Asia Globalfactors to determine whether a privilege exists in some of the unique scenarios described above. SeeIn re Asia Global Crossing, Ltd., 322 B.R. 247, 256 (Bankr. S.D.N.Y. 2005). The four (4) Asia Global factors are:
(1) does the employer / business maintain a policy banning personal use of e-mails;
(2) does the employer / business monitor the use of its computer or e-mail;
(3) does the employer / business have access to the computer or e-mails;
(4) did the employer / business notify the employee / person about these policies.
In addition to these four (4) Asia Global factors, some courts have applied a fifth (5) factor, which is: how did the employer / business interpret its computer usage policy? See Degeer v. Gillis, 09 C 6974, 2010 WL 3732132 (N.D. Ill. Sept. 17, 2010); United States v. Hatfield, 06-CR-0550 (JS), 2009 WL 3806300 (E.D.N.Y. Nov. 13, 2009).
According to the courts and opinions cited above, these factors are used to determine whether an employee / person has a reasonable, subjective expectation of privacy in his/her communication that society is willing to accept as objectively reasonable. If, upon applying these factors, an employee / person has a subjective expectation of privacy that is objectively reasonable, then certain courts have found the e-mail communications remain privileged. Conversely, if the expectation of privacy is not reasonable, or it is something that society does not accept as objectively reasonable, then the e-mail communications will not be protected by the privilege.
While this area of the law is continually changing and remains unsettled, a licensed attorney in your jurisdiction that is versed in this area of the law should be able to provide guidance on this and other similarly related privilege issues. For further information and insight on these issues, the following opinions (in addition to those cited above) may prove helpful:
United States v. Long, 64 M.J. 57 (C.M.A. 2006);
People v. Jiang, 131 Cal. App. 4th 1027, 33 Cal. Rptr. 3d 184, 188 (Cal. Ct. App. 2005);
Curto v. Medical World Communications Inc., 2006 WL 1318387
Scott v. Beth Industrial Medical Center, Inc., 847 N.Y.S.2d 436 (N.Y. 2007);
Leor Exploration & Production LLC v. Aguiar, Nos. 09-60136-CIV, 09-60683-CIV, 2009 WL 3097207, at *4 (S.D. Fla. Sept. 23, 2009);
Leor Exploration & Prod. LLC v. Aguiar, 09-60136-CIV, 2009 WL 3097207 (S.D. Fla. Sept. 23, 2009);
Nat’l Econ. Research Associates, Inc. v. Evans, CIV.A. 04-2618-BLS2, 2006 WL 2440008 (Mass. Super. Aug. 3, 2006);
Current Med. Directions, LLC v. Salomone, 26 Misc. 3d 1229(A), 907 N.Y.S.2d 99 (N.Y. Sup. Ct. 2010).
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