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Son’s Receipt of Privileged Emails Did Not Result in Waiver where Son was a “Necessary Conduit in Delivering” Attorney’s Emails to Plaintiffs : Electronic Discovery Law

September 4, 2010 By Leave a Comment

Green v. Beer, 2010 WL 3422723 (S.D.N.Y. Aug. 24, 2010)

In this day in age, it is easy to believe that everybody is familiar with email.  That is not always the case.  In this opinion, the district court reversed an order of the magistrate judge which found that plaintiffs’ attorney-client privilege was waived as a result of their son’s receipt of privileged emails where it was established that the son’s assistance was necessary to ensure plaintiffs’ timely receipt of the emails, in light of plaintiffs’ lack of email proficiency.

In this case, the magistrate judge determined that privilege had been waived as to emails created by or shared with non-parties who are not attorneys, namely plaintiffs’ financial advisors and plaintiffs’ son.  Specifically, the court rejected the financial advisors’ assertions that they were “assisting in the transmission of factual information between Plaintiffs and Plaintiffs’ counsel” and found there was “no evidence that their involvement was necessary to ensure the provision of legal advice, or to facilitate the delivery of emails.”  Likewise, the magistrate judge rejected the explanation of plaintiffs’ son that his “technical assistance was necessary for his parents to timely receive the email communications from counsel” because his parents were “not proficient in the use [of] electronic mail.”  The magistrate judge reasoned that “[l]ack of technical competence … is not the equivalent of an inability to communicate.  Mr. Green was not required to act as a translator between his parents and their attorney.  Rather, he simply expedited their communications.  There is no evidence that other, confidential means of communication would not have been sufficient.”  Plaintiffs objected to the order.

via Son’s Receipt of Privileged Emails Did Not Result in Waiver where Son was a “Necessary Conduit in Delivering” Attorney’s Emails to Plaintiffs : Electronic Discovery Law.

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Reviewing employees’ email | Lexology

May 11, 2010 By Leave a Comment

Quirky Question # 144:

I’m confused. I thought we could review our employee’s email communications when sent out on our company’s equipment. Our electronic communications policy states clearly that we reserve the right to do so.

I also thought we could review even privileged communications between our soon-to-be ex-employee and his attorney, if these communications were sent on our email system. I’m now being advised that we cannot do so. Can you offer any guidance?

My Analysis:

Your question illustrates the ongoing legal evolution in areas where advancing technology intersects employment law or affects other facets of legal analyses – here, the attorney-client privilege. Like technology itself, the law is developing and changing quickly in areas affected by technological advancements.

With respect to the issue of whether a company may review email communications of its employees, including even email communications between your employee and his/her outside counsel, I have written on this subject twice before. Happily, I am pleased to report that the advice I gave two years ago has been validated and reinforced by a recent decision from the Supreme Court of New Jersey.

The “confusion” you may be experiencing regarding this issue likely reflects the fact that this continues to be an area of the law where courts are providing mixed messages to litigants and their lawyers alike. Unsurprisingly, not all judicial decisions have adopted a uniform approach to the question of whether email communications to counsel, when sent on a company’s communications systems or computers, are protected by the attorney-client privilege.

One case that has received considerable recent attention and commentary is Stengart v. Loving Care Agency, Inc., et al., decided by the Supreme Court of New Jersey on March 30, 2010. Stengart is a thoughtful opinion and highlights many of the issues that you should consider in evaluating your unique fact pattern.

via Lexology – Reviewing employees’ email.

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When E-Discovery Is Used as a Weapon | The Recorder

May 11, 2010 By Leave a Comment

The attorney-client privilege is perhaps the oldest of the privileges for confidential communications known to common law. But the privilege is not available to a client who seeks legal advice to commit an ongoing or future crime or fraud. To prevent those abuses, courts have fashioned a limited exception to the privilege known as the crime-fraud exception.

Most attorneys understand that if they advise a client on how to rob a bank or perpetrate a fraud, their communications will not be shielded by the privilege. Yet, few attorneys realize that there is an increasing risk that their adversaries in litigation may use the crime-fraud exception to strip away the privilege protecting attorney-client communications in civil discovery. Most attorneys would view such an intrusion as an assault on the basic structure of the privilege. Without a strong, clear standard against such efforts in the civil arena, we expect there to be more attempts to expand the application of the crime-fraud exception to collateral litigation-related conduct in civil cases: particularly in the fast-evolving area of e-discovery and the unfamiliar and intimidating realm of information technology.

The strategy works as follows. The attorney planning to strip the privilege serves a typically overbroad set of document requests. She then follows up with a Federal Rules of Civil Procedure §30(b)(6) (or state law equivalent) deposition of the company’s representative to determine the failures or weaknesses in the company’s preservation, search, and production of electronically stored information. Technological advances have significantly increased the ways in which ESI can be saved, including but not limited to folders on various network drives that reside on different servers, hard drives, laptops, hand-held devices, home computers, and external storage applications. This increasing complexity is compounded by hardware and software that is constantly being updated or replaced. Personnel changes can also result in leaving no one with knowledge of each employee’s record-keeping habits. Faced with a broad-ranging document request, an attorney’s task of preserving and locating all relevant data becomes extraordinarily challenging. To make matters worse, the opposing counsel may then move to compel the production of documents under the low threshold of what is discoverable, which does not require proof of actual relevancy or admissibility at trial. The purpose is to create the impression that documents are missing or have been withheld.

Attorneys opposing this sort of motion to compel then face the difficult task of proving that all relevant documents were in fact preserved and produced, while at the same time ensuring the judge understands the company's technology infrastructure. Notwithstanding an attorney's reasonable and good faith effort to preserve and produce relevant documents, sources of potentially relevant data will inevitably go undiscovered. Or, the scope of preservation will be inadequate. If the opposing counsel obtains a sanctions order, it will characterize the discovery-related conduct as a “fraud,” and seek to pierce the attorney-client privilege by invoking the crime-fraud exception.

via When E-Discovery Is Used as a Weapon.

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Legal Privilege Still Elusive for EU’s In-House Lawyers | Corporate Counsel

May 8, 2010 By Leave a Comment
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In-house lawyers in Europe will have to keep fighting for legal privilege, according to a recent opinion (pdf) by a legal adviser at the European Union‘s highest court. Advocate-General Juliane Kokott of the European Union’s Court of Justice said on April 29 that attorney-client privilege should not apply to in-house corporate lawyers because they are not independent.

“A salaried in-house lawyer, notwithstanding any membership of a Bar of Law Society, does not enjoy the same degree of independence from his employer as a lawyer working in an external law firm does in relation to his client,” Kokott wrote in her opinion. “There is a structural risk that an enrolled in-house lawyer will encounter a conflict of interests between his professional obligations and the aims and wishes of his company.”

In-house corporate lawyers in Europe have been trying to overturn a 1982 ruling that says attorney-client privilege in the EU only applies to communications with outside counsel. Only a few EU member states apply privilege to in-house lawyers: the United Kingdom, Ireland and the Netherlands.

via Legal Privilege Still Elusive for EU’s In-House Lawyers.

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Court Declines to Impose Sanctions Against Qualcomm Attorneys Absent Evidence of Bad Faith : Electronic Discovery Law

April 6, 2010 By

Qualcomm Inc. v. Broadcom Corp., No. 05cv1958-B (BLM) (S.D. Cal. Apr. 2, 2010)

Apparently bringing an end to one of the best known e-discovery sagas since the 2006 amendments to the Federal Rules, United States Magistrate Judge Barbara Major has declined to impose sanctions against the previously sanctioned Qualcomm attorneys absent evidence of bad faith.

On January 7, 2008, Magistrate Judge Major issued an order granting in part defendant’s motion for sanctions upon finding that the plaintiff, Qualcomm, intentionally withheld thousands of documents and that six attorneys “had assisted Qualcomm in withholding the critical documents by failing to conduct a reasonable inquiry into the adequacy of Qualcomm’s document production and by ignoring warning signs, which indicated that the document search was not thorough and that Qualcomm’s documents production was not complete.”  The sanctioned attorneys objected.  Thereafter, U.S. District Court Judge Rudi Brewster determined that the sanctioned attorneys “had a right to defend themselves” and “should not be prevented from defending their conduct by the attorney-client privilege of Qualcomm and its employees and representatives.”  Finding the self-defense exception to the attorney-client privilege applicable, the court lifted the sanctions and remanded the case to the Magistrate Judge for additional consideration. A ccordingly, between March 2008 and the present, the previously sanctioned attorneys undertook significant efforts to defend their actions.  As a result of those efforts, Magistrate Judge Major has now declined to impose sanctions:

There still is no doubt in this Court’s mind that this massive discovery failure resulted from significant mistakes, oversights, and miscommunication on the part of both outside counsel and Qualcomm employees.  The new facts and evidence presented to this Court during the remand proceedings revealed ineffective and problematic interactions between Qualcomm employees and most of the Responding Attorneys during the pretrial litigation, including the commission of a number of critical errors.  However, it also revealed that the Responding Attorneys made significant efforts to comply with their discovery obligations.  After considering all of the new facts, the Court declines to sanction any of the Responding Attorneys.

Choosing not to summarize the evidence resulting in her determination, Magistrate Judge Major instead summarized the “major errors” she perceived throughout the discovery process, beginning with the “fundamental problem”, namely, “an incredible breakdown in communication.”  Specifically, the Magistrate Judge determined that “the lack of meaningful communication” permeating the relationships of all involved “contributed to all of the other failures.”  Among the specific failures recognized by the court were:  the failure to present evidence establishing that any attorney (in-house or outside counsel) explained the legal issues to the appropriate employees or discussed collection procedures; the failure to obtain sufficient information to understand the relevant computer systems; and the failure of any attorney to take on a supervisory responsibility for verifying that the necessary discovery was conducted.

via Court Declines to Impose Sanctions Against Qualcomm Attorneys Absent Evidence of Bad Faith : Electronic Discovery Law.

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Court Rules Communications with Attorney Using Work Computer are Protected as Privileged : Electronic Discovery Law

April 3, 2010 By

Stengart v. Loving Care Agency, Inc., 2010 WL 1189458 (N.J. Mar. 30, 2010)

In this employment litigation, the Supreme Court of New Jersey addressed whether employees have a reasonable expectation of privacy as to attorney-client privileged emails sent and received on a work computer.  The court held that under the circumstances presented, the employee/plaintiff did have a reasonable expectation of privacy as to emails with her attorney.  Additionally, the court remanded the case to the trial court to determine what, if any, sanctions should be imposed upon defense counsel for reading and utilizing the emails at issue, despite indications that they were protected as privileged.

Maria Stengart, plaintiff, utilized her employer-provided laptop to access a personal, web-based, password-protected email account through which she communicated with her attorney regarding her situation at work (which eventually resulted in filing a complaint).  Emails sent from her attorney indicated their privileged status.  Upon leaving her position and filing her complaint, Stengart’s former employer, Loving Care Agency (“Loving Care”), hired experts to create a forensic image of Stengart’s laptop.  The emails, which had been stored in the laptop’s temporary files, were recovered, passed on to counsel, and eventually utilized in the course of discovery.  Upon learning of defense counsel’s possession of the emails, Stengart’s counsel demanded their immediate return. Defense counsel refused, and the issue went before the court.  The superior court decided in favor of Loving Care and held that there was no breach of attorney-client privilege “because [Loving Care’s] policy placed Stengart on sufficient notice that her emails would be considered company property”.  The appellate court held that the policy upon which the trial court relied could allow an objective reader to conclude that not all personal emails were company property and reversed the trial court.  The issue was then appealed to the Supreme Court.

The Supreme Court found in favor of Stengart.  Beginning its analysis with an evaluation of the policy addressing an employee’s personal computer use, the Supreme Court determined that the scope of Loving Care’s written policy was “not entirely clear.”  The ambiguity resulted from the policy’s failure to specifically address personal emails, from the lack of warning that the contents of all emails were stored on the users’ computers and could be forensically retrieved and read later, and from the policy’s explicit statement that “occasional personal use [of email] is permitted.”  The court next considered the oft-cited policies underlying the attorney-client privilege, namely the benefit provided to the public by sound legal counsel “based on full, candid, and confidential exchanges.”

via Court Rules Communications with Attorney Using Work Computer are Protected as Privileged : Electronic Discovery Law.

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Free: The Future of Litigation by Shira A. Scheindlin

February 5, 2010 By Leave a Comment

The following remarks were presented by U.S. District Judge Shira A. Scheindlin on Jan. 13, 2010, at the Inns of Court

Another problem is what privacy laws, and for that matter what privilege laws, will govern discovery in a civil case involving foreign parties (i.e., cross-border discovery). In the era of globalization and multinational companies, relevant documents will be created and maintained in foreign jurisdictions, many of which have privacy laws that forbid the production of documents without consent of the author, the recipient or any person mentioned in the document. Some countries have recently put teeth in their privacy laws by imposing stiff fines or jail terms for anyone who produces such documents in violation of their laws, even when such production is ordered by a U.S. court. Our courts have held that U.S. laws will govern the production of documents in a U.S. litigation, even when those documents are created and stored abroad and our courts have not been particularly respectful of the limitations imposed by foreign laws.29 This may be changing. And where are documents stored and created anyway in the era of cloud computing?

Our laws of privilege may not be the same as those in foreign jurisdictions. For example, the EU’s legal professional privilege (their equivalent of our attorney client privilege) does not protect communications between in-house counsel and employees. Which law will govern assertions of privilege?

I close with the recent theme of cooperation as the latest concept in the management of discovery. For those steeped in the adversary system this word will sound strange but it is on everyone’s lips. The Sedona Conference has issued its Cooperation Proclamation, endorsed by nearly 100 judges, that states, in essence, that we can no longer afford the luxury of fighting over discovery and spending years hiding the ball.

Lawyers are urged to cooperate in understanding each other’s computer systems, and in agreeing on a list of search terms, the search techniques, the form of production, whether metadata will be required, and, if so, for what records, and stipulating to the authenticity of electronic records through hashing techniques, the 21st century equivalent of Bates stamping. Those who continue to practice with a 20th century mind set and refuse to engage in cooperative discovery efforts may find themselves on the wrong end of a sanctions motion. We may also see a move toward more cost shifting.

Shira A. Scheindlin is a U.S. District Judge in the Southern District of New York.

via The New York Law Journal – Free: The Future of Litigation.

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More Privilege Issues With Employee E-Mail

January 5, 2010 By Leave a Comment

This article will explore the implications of the troubling privilege issues that confronted a lawyer in Brooklyn when he found that he owed conflicting duties to two clients in unrelated matters in connection with the same item of privileged information. Following that discussion, the article will return to the topic addressed recently in this column, namely whether or not the attorney-client privilege is lost when clients use their employers' technology to send e-mails to their lawyers. Two more cases have addressed the same issue in recent weeks, raising the question whether a consistent set of principles can be applied when these issues arise.

via More Privilege Issues With Employee E-Mail.

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Retrospective: Ten Key Evidence Issues In 2009 | Federal Evidence Review

January 5, 2010 By Leave a Comment

As the year 2009 concluded, we take this opportunity to review some key evidence issues that were considered during the past year. While it is challenging to offer a definitive list, we offer the following ten key evidence issues from the past year, which are not ranked in any particular order. Some of these issues involved the attorney-client privilege and whether interlocutory appeals may be taken from adverse rulings; the Confrontation Clause; the ability of a court to consider a constitutional challenge concerning jury deliberations; electronic and Internet evidence; cases construing FRE 502, involving attorney-client privilege issues, the most recent amendment to the rules; corporate prosecution issues; and more.

Federal Evidence Reviews Ten Key 2009 Evidence Issues

  1. Supreme Court: Mohawk Industries Attorney-Client Privilege Interlocutory Appeal Decision
  2. Supreme Court: Melendez-Diaz Confrontation Clause Decision
  3. Reviewing Jury Deliberations: The Constitution vs. FRE 606b
  4. Role Of The Court In Reviewing State Secret Privilege Claims
  5. Compelling Production Of Corporate Records Provided To The Government
  6. New Rule: FRE 502 Attorney-Client Privilege And Work-Product Doctrine
  7. Applying Federal Law On Spoliation Issues
  8. Electronic And Internet Evidence Issues
  9. Limits To Non-Hearsay Background And Context Doctrine
  10. Standard For Access To Grand Jury Testimony

[continued] Retrospective: Ten Key Evidence Issues In 2009 | Federal Evidence Review.

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Court Finds Personal E-Mail Privileged Even if Sent From Work

December 12, 2009 By Leave a Comment

A federal prosecutor has won his fight to conceal e-mails he sent to his attorney over the government's computers, contradicting a popular belief that employees have no expectation of privacy on work computers.

The U.S. District Court for the District of Columbia ruled on Thursday that Assistant U.S. Attorney Jonathan Tukel had a reasonable expectation of privacy in those e-mails because federal prosecutors were allowed to use work e-mail for personal matters. Therefore, Tukel's messages to his private lawyer sent from work are covered by the attorney-client privilege and can remain confidential.

The party trying to get the e-mails is former federal prosecutor Richard Convertino, who lost his job after his convictions in a high-profile terrorism trial in Detroit were overturned in 2004 due to prosecutorial misconduct. Convertino, who believes he was retaliated against for blowing the whistle on incompetence in the Bush administration's war on terror, is trying to find out who leaked confidential information about an investigation into his conduct to the Detroit Free Press.

Convertino believes Tukel's e-mails to his lawyer may shed some light on the matter.

According to court documents, Tukel was the prosecutor in Detroit who reviewed Convertino's cases, and he was “one of the original parties that initiated confidential personal matters” related to Convertino.

Tukel has denied in an affidavit that he's the source of the leak. But Convertino still wants the e-mails. He argued that Tukel had no privacy expectations in e-mails sent over a government computer.

The court disagreed.

“The DOJ maintains a policy that does not ban personal use of the company email. Although the DOJ does have access to personal emails sent through this account, Mr. Tukel was unaware that they would be regularly accessing and saving emails sent from his account. Because his expectations were reasonable, Mr. Tukel's private emails will remain protected by the attorney-client privilege,” wrote Chief Judge Royce Lamberth.

[continued] Law.com – Court Finds Personal E-Mail Privileged Even if Sent From Work.

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