Employee/Employer Implicated: Employees and Employers Alike
e-Lesson Learned: The employee in this case had a reasonable expectation of privacy in personal web-based emails between the employee and her lawyer, sent and received (during work hours) using the employer’s computer and IT systems.
This is the second video by Joscelyn from the eLessons Learned series on Stengart, dealing with the March 30 New Jersey Supreme Court decision favoring privacy over waiver of attorney-client privilege.
e-Lesson Learned: Attorney-client communications made via personal, password-protected web-based email accounts are still privileged, even if accessed via a company-supplied computer – at least in New Jersey!
The New Jersey Supreme Court has a long history of affording New Jersey citizens broader privacy protection rights than those offered by the federal government. For example, the New Jersey Supreme Court has held that citizens have a reasonable expectation of privacy in their bank account records, in their garbage, and in the personal information linked to their IP addresses. Thus, when the question of whether an employee who uses a company computer to access e-mail communications between her and her attorney maintains the confidentiality of those communications, it was no surprise that the Court held that the act of an employee who accesses her attorney-client communications via a company laptop does not destroy the privilege.
e-Lesson Learned: Don't post potentially incriminating statements or photographs on publicly available websites, especially if they are directly traceable back to you.
All content that you put on the internet, whether you think it is private or not, is out in the open and can be accessed by anyone. Think about some of things you may have on your MySpace or Facebook pages, or may have posted on your blog or might have tweeted. Do you want your boss or the police or the courts to see them? If not, you’d be wise to avoid posting anything that could expose you to the wrath of authorities.
In Clark v. State, police and prosecutors used statements on Ian Clark’s MySpace page to help convict him of first-degree murder. Granted, your dirty little secrets probably won’t end up as badly as Ian Clark’s, but why take any chances?
Employee/Employer Implicated: Employees and Employers Alike
e-Lesson Learned: Coming as soon as the Supremes rules on the issue of whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer sent and received (during work hours) using the employer’s computer and IT systems
So what is all the fuss about Stengart v. Loving Care Agency, Inc. et al.? Why are eDiscovelebrities and employment lawyers alike watching the case so closely? Why should YOU be watching?Privacy! (And eDiscovery, of course)
“It” (Stengart, the fuss, the Supreme Court of New Jersey, this post, all this blog attention) all boils down to whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer sent and received (during work hours) using the employer’s computer and IT systems.
According to the trial court, Stengart did not have a reasonable expectation of privacy and the emails were properly retrieved and used by the employer and its lawyers in defense of the lawsuit. According to the appeals court, not only did she (have a reasonable expectation of privacy), but also the appeals court took issue with the way the company lawyers handled the situation and queried whether the lawyers acted inappropriately when they retrieved and used these emails – and whether they should be sanctioned and/or thrown off the case. Ouch!
Protecting your privacy starts with you! When sending an email, keep in mind where you are sending it from – it may not be as private as you may think (or expect). In Leor v. Aguiar, the court found that the CEO had no reasonable expectation of privacy in emails he transmitted through his employer’s server, thus, he could not meet the burden necessary to establish attorney-client privilege in an email he sent to his attorney from work, resulting in the e-mail losing protection from disclosure. CompareStengart v. Loving Care Agency, Inc., New Jersey Superior Court, docket no. BER-L-858-08 (similar holding) withStengart v. Loving Care Agency, Inc., 408 N.J. Super. 54 (App. Div. 2009) (reversing trial court and finding no waiver of privilege) (certification granted by the New Jersey Supreme Court and decision pending).
The court iterated that whether an employee had a reasonable expectation of privacy in his/her emails transmitted through an employer’s server should be determined on a “case-by-case basis.”
Citation: U.S. v. Sensient Colors, Inc., 2009 WL 2905474 (D. N.J. Sept. 9, 2009).
Employee/Employer Implicated: Outside Counsel
e-Lesson Learned: To avoid waiver of attorney-client and work-product protections when producing significant amounts of data, it’s important for producing attorneys to (1) establish reasonable document review methods geared towards minimizing the amount of inadvertently produced privileged documents, and (2) conduct a prompt re-review of all produced documents upon notification that privileged documents may have been inadvertently produced.
The document reviewing attorney is charged with an unenviable task: Review thousands of documents to ensure that no privileged information is produced to opposing counsel. Given the fact that document productions may consist of thousands or even millions of pages of documents, it is not surprising that privileged documents will slip by the watchful, often weary, eye of reviewing attorneys – it is inevitable.
Not to worry, the Federal Rules of Evidence are sympathetic to those tired eyes. Inadvertently produced privileged documents do not automatically lose their privilege protection. However, it is important to note that although FRE 502 allows some wiggle room for error, the attorney for the producing party must be careful. Failing to take reasonable steps to prevent inadvertent disclosure, or failing to promptly identify privileged documents that had been produced mistakenly can result in the waiver of highly privileged documents, oftentimes a deathblow to an otherwise winnable case.
For all the lawyers out there looking to fill the gaps in your client’s case at the last minute, we’ve got some bad news. It turns out Wikipedia is not a reliable source of information.
In Palisades Collection, L.L.C. v. Graubard, the Appellate Division of the Superior Court of New Jersey held that a court may not treat a Wikipedia entry as conclusive evidence of a fact over which parties to a case clearly disagree. The plaintiff, Palisades Collection, L.L.C. (“Palisades”), was a collection agency that purchased a portfolio of delinquent accounts from Bank One Corporation (“Bank One”). Palisades alleged that one of the overdue accounts belonged to the defendant.
On February 3, 2006, Palisades’ attorney notified the defendant that Bank One had sold his client the defendant’s account, which the defendant originally owed to Chevy Chase Bank, and that Palisades’ attorney was now seeking to collect the debt on behalf of his client. Three days later, the defendant sent Palisades’ attorney a letter stating that he was disputing the validity of the claim because he could not recall Bank One Corporation ever granting him credit. Continue reading »
Citation: US v. Bennett, 363 F.3d 947 (9th Cir. 2004)
Employee/Employer Implicated: U.S. Customs Officer Malcolm McCloud Chandler
e-Lesson Learned: The best evidence rule isn’t just for journals, photographs and computers anymore … that’s right, GPS units are now among the electronic devices required to be physically present or have original documentation to support the information taken from the device to be used in testimony.
Officer Keith James of the Coronado Police Department’s Task Force spotted Vincent Franklin Bennett’s boat travelling north near the U.S.-Mexico border on January 27, 2000. Upon boarding Bennett’s boat in San Diego Bay the officers noticed that the registration information did not match the boat, that the boat was riding extremely low in the water and there was a new high performance in the boat which provided space which the officers could not account for. Also, after boarding the officers learned that there was a warrant out for Bennett’s arrest. Once Bennett was removed for questioning, the boat was searched and x-rayed for marijuana that was hidden on board. The x-raying resulted in 1,541.5 pounds of marijuana being found.
The district court denied Bennett’s motion to suppress the marijuana and convicted Bennett of importing marijuana and intending to distribute marijuana. Following his convictions, Bennett appealed in anyway humanly possible, since otherwise he would be spending over 10 lovely years in prison. Continue reading »
Citation: Aguilar v. Immigration & Customs Enforcement Div., 2008 U.S. Dist. LEXIS 97018 (S.D.N.Y. 2008)
Employee/Employer Implicated: Outside Counsel that failed to request ESI with metadata.
e-Lesson Learned: At the outset of any litigation, the parties should discuss whether the production of metadata is appropriate and attempt to resolve the issue without court intervention. Courts generally have ordered the production of metadata when it is sought in the initial document request and the producing party has not yet produced the documents in any form. However, if metadata is not sought in the initial document request, and particularly if the producing party already has produced the documents in another form, courts tend to deny later requests for metadata.
This case is a civil rights action brought by more than thirty Latino plaintiffs who allege that the Immigration and Customs Enforcement Division of the United States Department of Homeland Security and certain of its employees subjected them to unlawful, unwarranted searches of their homes in violation of the Fourth Amendment. The plaintiffs in this case had been ordered to leave the country, however, they remained in the US as fugitive aliens. This opinion arose because counsel failed to discuss the form of production for electronic documents early in the case, and the Court was forced to resolve several issues concerning the discoverability of metadata.
During a Rule 26(f) discovery conference, the parties agreed that discovery would proceed and that the parties would serve their first requests for the production of documents by February 15, 2008. There was no discussion of metadata at this conference. On February 15, the Plaintiffs served their first request for the production of documents, but their request did not specify the form in which they sought to have electronically stored information (”ESI”) produced. This request did not mention metadata either.
Employee/Employer Implicated: Employees and Employers Alike
e-Lesson Learned: (Coming as soon as the Supremes rule on the issue of whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer, sent and received (during work hours) using the employer’s computer and IT systems
Earlier we reported that a New Jersey state trial court found that a former employee waived the attorney-client privilege when she decided to use company time, equipment, and resources to communicate with her lawyer (see Stengart v. Loving Care). Recently, an appellate court reversed that ruling and framed the issue “whether workplace regulations converted an employee’s emails with her attorney” sent through the employee’s personal, password-protected, web-based email account, but via her employer’s computer “into the employer’s property.”
Plaintiff had argued that the company failed to demonstrate that it had ever adopted or distributed the policy in question, that she was unaware that the policy applied to her, and even if the policy did exist, the company had not previously enforced it. The company argued that it had disseminated the policy, and that the policy did apply to the plaintiff. The appellate court determined that issues of material fact existed as to whether the policy at issue was in place and disseminated at the time of plaintiff’s employment and as to whether the policy applied to plaintiff; and that these issues could not be resolved by the trial judge without a hearing on the matter.
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Tagged as: Admissibility, Claw Back, Privilege, Production of Data, Waiver, Work-Product Doctrine
