Litigation

Communications with Attorney Using Company Computer and Email Account Not Protected by Attorney-Client Privilege

By reston, Gates and Ellis

Alamar Ranch, LLC v. City of Boise, 2009 WL 3669741 (D. Idaho Nov. 2, 2009)

In this case arising from a land use and permitting dispute, the court ruled that emails sent by a non-party to her attorney using her work computer and work-assigned email address were not protected by the attorney-client privilege.  In so holding, the court relied in large part upon the existence of company policy which put the employee on notice that her emails were subject to monitoring and were not confidential.  Emails sent by the attorney to the employee's work account were likewise unprotected where the attorney was on notice of the employee's use of company email and should have recognized the risk that such emails were unprotected.  As for emails sent to the attorney by other clients and copied to the employee, the court reasoned that such emails retained their privileged status where the senders (non-employees of the relevant company) were not on notice of the potential exposure of their emails to outside scrutiny.

Non-party Jeri Kirkpatrick opposed the issuance of a conditional use permit for the construction of a facility for troubled youth and belonged to a group of likeminded citizens called Opponents of Alamar ['Opponents'].  The Opponents were represented by attorney Dennis Charney.  In the course of discovery in the relevant litigation, counsel for Alamar Ranch LLC, Dara Labrum, sought discovery of Charney's non-privileged files and thereafter obtained copies of several emails which Charney subsequently claimed were protected as privileged.  Charney filed a motion seeking the emails' return.

Quickly dismissing any work product protection because Charney represented only non-parties to the action, the court turned to the question of whether the emails were protected by attorney-client privilege.  Specifically, the court presented the question:  'Does the use of work e-mail waive any privilege?'  To answer the question, the court turned first to the four factor test established by other jurisdictions:

(1) Is there a company policy banning personal use of e-mails?; (2) Does the company monitor the use of its e-mail?; (3) Does the company have access to all e-mails?; and (4) Did the company notify the employee about these policies?  See In re Asia Global Crossing, LTD., 332 B.R. 247, 257 (S.D.N.Y.2005).

The court rejected Kirkpatrick's 'bare assertion' that she did not 'subjectively intend to waive the privilege' of the emails as 'insufficient' in the face of her employer's policies regarding electronic communications.  Specifically, her employer's policies stated that employee emails would:  '(1) become company property, (2) be monitored, stored, accessed and disclosed by [the employer], and (3) should not be assumed to be confidential.'  Additionally, the court reasoned:  'It is unreasonable for any employee in this technological age--and particularly an employee receiving the notice Kirkpatrick received--to believe that her e-mails, sent directly from her company's e-mail address over its computers, would not be stored by the company and made available for retrieval.'

Accordingly, the court found that Kirkpatrick had waived the privilege as to those messages sent from work.

Addressing emails sent from Charney to Kirkpatrick's work address, the court found that they were also unprotected:

[T]here is no question that her address--"JeriK@IHFA.org"--clearly put Charney on notice that he was using her work e-mail address.  Employer monitoring of work-based e-mails is so ubiquitous that Charney should have been aware that the IHFA would be monitoring, accessing, and retrieving e-mails sent to that address.  Given that, the Court finds that Charney's e-mails sent to Kirkpatrick's work e-mail are likewise unprotected by any privilege.

For emails sent to Charney by other Opponents and copied to Kirkpatrick's company address, the court found that the privilege was intact where 'there [was] no evidence that [other Opponents] were aware- or should have been aware – that by copying Kirkpatrick…they were exposing their emails to [her employer's] scrutiny.'  The court declined to extend the constructive knowledge that Charney had because 'laypersons are simply not on ‘high alert' for such things as attorneys must be.'

A full copy of the opinion is available here.

Full post as published by eDiscovery Law on December 01, 2009 (boomark / email).