e-Lessons Learned

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?

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The old adage: “measure twice, cut once” applies to carpentry and very well should apply to the legal profession. Both a carpenter and an attorney will save time and money by adhering to this maxim.

Take for example Preferred Care Partners Holding v. Humana. In that case, Humana produced an additional 10,000 documents two months after the completion of discovery, and suffered sanctions because of it. Humana discovered the existence of these newly produced documents during a deposition of an employee who found residual copies of documents that he believed had been deleted from his computer. As a consequence, Humana conducted a subsequent search which led to the discovery of a vast number of residual files on other computers. Because of the need to sort through all of the documents to determine which ones were responsive and privileged, the files were not produced until well after discovery concluded, and only a short time before trial.

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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!

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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. Compare Stengart v. Loving Care Agency, Inc., New Jersey Superior Court, docket no. BER-L-858-08 (similar holding) with Stengart 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.”

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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.

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Don’t take your discovery obligations lightly! When your adversary requests documents from you during discovery, it becomes your obligation to undertake a thorough search of your files (electronic or otherwise) to locate those documents and produce them in a timely manner and in the format requested by your adversary. Failing to do so could cost you more than $25 Million dollars, as it did to the plaintiff in B & G Management v. Lexington Insurance. Can you afford that?

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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.

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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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We’ve all said something we shouldn’t have…but writing the personal comment in an e-mail and sending it through your company’s e-mail system, is not the time and place.

Factual Background

Michael Smyth, an at-will employee of The Pillsbury Company, claimed he was wrongfully discharged from his managerial position at the company. Smyth said The Pillsbury Company invaded his right of privacy by wrongfully intercepting e-mails the company assured would remain confidential.

The Pillsbury Company maintained an e-mail system to promote internal communication amongst its employees. The Company repeatedly told its employees that all e-mails would remain privileged information and could not be used against its employees as grounds to terminate their employment.

Smyth received an e-mail from his supervisor through the company’s e-mail system on his computer at home. The Pillsbury Company alleges that Smyth responded to the supervisor with emails that contained threats to “kill the backstabbing bastards” and referred to the planned Holiday party as the “Jim Jones Koolaid affair.” Continue reading »

Law school is an exciting (albeit stressful) time for a lot of individuals. One of the first things you notice is that you will be learning all these new legal concepts that you think you’ll be able to apply in you daily life. You sign a lease – and you think of Contracts and Property classes. You see a car accident happen – and you think of Torts. You see an opportunity to create an evidence to substantiate a false claim against a company – and you think of Civil Procedure and Evidence. Wait, come again?

Apparently, that’s last one is what one student at Chicago-Kent Law School thought while she was enrolled there. Continue reading »