Authored By: Edward J. Piasecki

Citation: Terraphase Engineering, Inc., et al. v. Arcadis, U.S., Inc. U.S. District Court for the Northern District of California

Employee/Employer Implicated: In-House and Outside Counsel

e-Lesson Learned: If counsel inadvertently receives an email containing privileged information, reads it, and fails to notify the sender, counsel may be disqualified.

Tweet This: Finders Keepers? What Not to Do With Inadvertently Received Privileged Information

Ever find something you knew did not belong to you, but kept it anyway? If you have, perhaps you did so under the guidance of the old adage “Finders keepers, losers weepers.” The adage can be applied in a multitude of ways to a variety of things. One of the more humorous situations in which this occurs is via the receipt of an inadvertently sent email. Perhaps a colleague, thinking he was writing to his wife, inadvertently sent you an email about shopping at Bed, Bath, and Beyond. Or perhaps another colleague inadvertently hit reply all to an email belittling his boss. If you have spent anytime in the workplace, scenarios like these are all too familiar. When you receive an email like this, it may be the greatest gift the office humor gods can bestow upon you and it must be opened immediately and maybe even saved to embarrass a colleague at some later date. Finders keepers, losers weepers right? Unfortunately, this is not always so. When legal counsel inadvertently receives an email with privileged information, finders keepers can have dire consequences.

Authored By: Drew Manary

Citation: Radian Asset Assurance, Inc. v. College of Christian Brothers of New Mexico (2010).

Employee/Employer Implicated: Plaintiff (Radian), defendant (College of Christian Brothers of New Mexico) and subsequent owner of defendant’s assets, Laureate Education, Inc.

e-Lesson Learned: If a defendant is compelled to produce unreviewed ESI, defendant shall have to pay for production but plaintiff shall pay for review. Additionally, if privileged information is transferred inadvertently from defendant to plaintiff, the defendant has burden of proving the information was privileged.

Tweet This: Forcing D's to pay for ct-ordered production isn't unreasonable, nor making them est. the inadvertent transf of privl. information

Radian initially filed suit against College of Christian Brothers in September 2009. Two days the filing, defendant (“College”) sold its assets to Laureate Education. As early as March 2010, College subpoenaed Laureate Education for materials obtained in the sale. In August 2010, College received 135 hard drives, 52 backup tapes, and an additional hard drive with information from Laureate Education’s current server. Radian and College had been to court several times over ESI. In September 2010, the Court ordered that College search and produce email from certain tape backups as well as producing 1,219 files Radian had assessed as relevant from Laureate Education’s current hard drive. The dispute in the present matter is whether College should be forced to restore the tape backups and review them at their own expense and whether doing otherwise constitutes unreasonable cost-shifting. Radian makes five arguments in support of this proposition.

Authored By: Christopher D. Dize

Citation: Oxxford Info. Tech., Ltd. v. Novantas, LLC, 910 N.Y.S.2d 77 (N.Y. App. Div. 2010)

Employee/Employer Implicated: Clients and Attorneys

e-Lesson Learned: If an attorney agrees to return or destroy the other party’s confidential information at the close of litigation, the New York Appellate Division will hold him to it, even if it becomes “too costly” to follow through.

Tweet This: NY Appellate Division Rejects Modification of Confidentiality Order

When counsel for plaintiff Oxxford Information Technology entered into a confidentiality stipulation that all information exchanged during discovery would either be returned to the original party or destroyed, they never imagined that it would be so costly to get rid of the information. After the matter settled, however, Oxxford's counsel learned that they had "inadvertently backed up defendants' information onto numerous back-up tapes to their law firm's computer system." Ironically, it was Oxxford's counsel who had originally demanded the core business secrets that ended up on the tapes.

Authored By: Shaun Salmon

Citation: McMillen v. Hummingbird Speedway, Inc.., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270

Employee/Employer Implicated: Other (Plaintiff in personal injury action)

e-Lesson Learned: Your “private” social posts and conversation are not privileged materials for purposes of discovery.

Tweet This: There’s no such thing as a “social network site privilege.”

In 2007, Bill R. McMillen, Sr., was rear-ended by Defendant Wolfe during a cool down lap in a stock car race. He later filed suit to recover damages for the following allegedly sustained injuries: possible permanent impairment, loss and impairment of general health, strength, and vitality, and inability to enjoy certain pleasures of life. In 2010, after viewing the part of plaintiff’s Facebook account that was available to the public, Defendant Hummingbird filed for an order compelling the plaintiff to disclose his Facebook and MySpace user names and passwords. This request was based on public comments regarding the plaintiff’s fishing trips and trip to the Daytona 500. The defendants wanted to “determine whether or not plaintiff [had] made any other comments which impeach and contradict his disability and damages claims,” or more plainly stated: “we want to make sure this dude isn’t lying.”

Authored By: Jessica K. Rauskolb

Citation: In re Grand Jury Subpoenas, 627 F.3d 1143 (9th Cir. Cal. 2010)

Employee/Employer Implicated: Government official, Outside counsel, Miscellaneous

e-Lesson Learned: Non-privileged information originating outside the U.S. that you had to produce as a result of discovery from a civil antitrust suit can get into the hands of a grand jury and be used against you in an antitrust investigation.

Tweet This: Note, discovery in civil litigation can move information within the grasp of the grand jury - and there is nothing you can do about it.

Be careful when you defend a civil suit that was triggered by a government investigation! When you respond to discovery requests and produce material which was previously not within the reach of the grand jury, the government can subpoena these documents! A civil protective order will not do you any good! The defendants in In re Grand Jury Subpoenas had to find that out the hard way.

Authored By: S.S.K.

Citation: Estate of Davis v. Spriggs, 2010 WL 4817348 (Delaware County Nov. 19, 2010)

Employee/Employer Implicated: Miscellaneous employees

e-Lesson Learned: Having an “Evidence Eliminator” program which destroys electronic data on a computer upon start-up can justify incidental deletion of evidence when your job involves sensitive information.

Tweet This: OH AppCt: It’s legal to destroy incriminating evidence on your computer! (Sometimes.)

Again with the scandalous sex tapes? Seriously? With all the publicity surrounding leaked sex tapes coupled with the prevalence and ease of digital communication, one cannot honestly believe such a tape will remain a well kept secret. You’ll receive no sympathy on this blog for your escapades, and you’ll receive no sympathy in the Ohio court system, either. In Davis v. Spriggs, Spriggs was suing her former husband (Davis) for posting pictures and video on an adult website after the divorce settlement, signed a few months prior, specifically prohibited such distribution. Spriggs discovered these pictures after logging into a members-only adult website which sent her enough email spam she just had to check it out. Whilst cruising the racy adult website she also discovered pictures of her ex’s new girlfriend.

Authored By: William J. Brennan

Citation: GATX Corp v. Appalachian Fuels, LLC, 2010 U.S. Dist. LEXIS 129706 (E.D. Ky. Dec. 7,2010)

Employee/Employer Implicated: Counsel for the Defendant

e-Lesson Learned: Accidental disclosure of privileged (attorney client) e-mail requires strict adherence to Rule 502 (b), failure to comply with (Rule 502 (b) will likely result in a finding that any waiver of privilege was intentional. An attempt to introduce accidentally disclosed communication risks access to all such communication.

Tweet This: Carelessness in releasing attorney client e-mail costs more time and effort than careful review of discovery responses.

A Kentucky law firm narrowly escaped a waiver of privilege via adherence to Rule 502 (b). After carelessly turning over privileged e-mails; Wood, Wood and Young (of Maysville Kentucky) learned the hard way that turning over reams of e-mail absent careful redaction of privileged communications can have serious consequences. Fortunately, the firm adhered to Rule 502 (b) after opposing counsel put them on notice that privileged communication had been disclosed. In GATX Corp v. Appalachian Fuels, LLC, 2010 U.S. Dist. LEXIS 129706 (E.D. Ky. Dec. 7,2010) the employees merely communicated with counsel via e-mail on a range of topics, some privileged and in the ordinary course of business. Unlike phone calls and snail mail, those communications were easily retrievable, voluminous in nature, and consequently less readily subject to redaction.

Authored By: Eric Abes

Citation: Gates v. Wheeler, 2010 Minn. App. Unpub. LEXIS 1136 (Minn. Ct. App. Nov. 23, 2010)

Employee/Employer Implicated: Owners; IT Administrator

e-Lesson Learned: Do not put anything into your company’s computers that you want to remain private. Do not read your business partners emails.

Tweet This: You may have an expectation of privacy in your emails, but don’t expect your boss to abide by it --> http://ellblog.com/?p=2238

Everyone knows that the iPhone is a superior method of communication. It far surpasses all other computers, smart phones, company email accounts, Morse code, smoke signals and binary code communications. And most importantly, IT CANNOT BE ACCESSED BY YOUR BUSINESS PARTNER. In Gates v. Wheeler, 2010 Minn. App. Unpub. LEXIS 1136 (Minn. Ct. App. Nov. 23, 2010), the respondent may have been vindicated, but the problem was partly of his own making. In Gates, Gates sued his business partner, Wheeler, for equitable relief concerning their jointly held LLC. The two were the sole partners and could not agree on business decisions. As they were deadlocked, Gates sued to have the court remedy the situation. Fairly typical case until Wheeler decided to cheat.

Authored By: Joscelyn

Citation: Stengart v. Loving Care Agency, Inc.

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.

Tweet This: Video eLessons: Privacy wins out in latest Stengart decision --> http://ellblog.com/?p=2059

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.

Authored By: Fernando M. Pinguelo and Laura J. Tyson

Citation: Stengart v. Loving Care Agency, Inc.

Employee/Employer Implicated: Employees, Employers, In-House Counsel, Outside Counsel, EVERYONE!

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!

Tweet This: Workplace Computer-use Policy vs. Private Employee Emails? PRIVACY prevails in New Jersey --> http://ellblog.com/?p=2055

(See also: Fernando M. Pinguelo, "New Jersey Supreme Court Rules That Employees Retain Privacy and Privilege of Attorney-Client Communications Made from Work," Digital Discovery & E-Evidence, Vol. 10 No. 5, The Bureau of National Affairs, Inc. (BNA) April 15, 2010.) 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.