DeGeer v. Gillis, 2010 WL 3732132 (N.D. Ill. Sept. 17, 2010)
In this case, the court addressed the question of waiver as to nine privileged emails. As to six emails inadvertently produced by a third party, waiver was averted by the terms of a Stipulated Protective Order entered by the court which precluded waiver by inadvertent production. As to three other emails, the question of waiver turned on plaintiff’s use of his work computer to send the messages. Relying on evidence that plaintiff’s employer did not believe such use would waive privilege, the court ruled privilege was not waived.
In August 2009, while employed by Huron Consulting Services, LLC [“Huron”], plaintiff was required to deliver all Huron-related electronic data in his possession to Huron’s counsel in connection with an internal investigation. Plaintiff was specifically directed by Huron’s counsel not to remove any materials from the Huron-issued laptop and thus did not delete three privileged emails contained thereon. Plaintiff “maintained his privilege in these communications” with Huron’s counsel, however, by alerting them (through his counsel) to the existence of the emails and requesting they be removed before any electronic data production. Huron’s counsel complied.
In June 2010, Huron produced an external hard drive in response to defendants’ subpoena which contained the image of plaintiff’s hard drive as well as additional data provided by plaintiff and copies of emails that resided on Huron’s server. Thereafter, plaintiff and his counsel became aware that six privileged emails had been produced. Unlike the three previously identified privileged emails sent from plaintiff’s work email, these messages were sent from plaintiff’s personal email account and had been maintained on Huron’s servers unbeknownst to plaintiff and his counsel.
Plaintiff asserted that all nine of the emails were protected as privileged. Defendants objected and plaintiff sought a finding sustaining his claims.
