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Long v. Marubeni America Corporation

2006 WL 2998671 (S.D.N.Y., October 19, 2006)

Employees Waive Privilege In Communications Transmitted From Company Computer System

Court holds that employees waived both the attorney client and work products privileges by using a company computer system to transmit otherwise privileged communications to their counsel.  These communications were sent from private password protected email accounts, and not from the company's own email system.   Importantly, however, copies of these emails were retained by the company's system in "temporary internet files."  As the company could and did obtain these emails by reviewing its own system, the court held that plaintiffs had waived applicable privileges by failing to maintain the confidentiality of these communications in light of the company's electronic communications policy.  That policy advised the employees not to use the company system for personal purposes, and warned them that they had no right of privacy in any materials sent over the system.  The court reached this result notwithstanding its determination that the employees had no knowledge that copies of their email communications were so retained in the company's computer system.

Privileged Communications Sent From Password Protected Private Accounts

Plaintiffs Kevin Long and Ludvic Presto were employed by defendant Marubeni America Corporation ("Marubeni").  During the course of their employment, plaintiffs sent emails to their counsel from Marubeni computers issued to them to perform their work assignments.  These emails were not transmitted over Marubeni's company email system.  Rather, they were transmitted from private password protected email accounts.

Unbeknownst to the plaintiffs, however, the company computer system maintained residual images of plaintiffs' email messages in temporary internet files accessible only to Marubeni employees other than the plaintiffs.

Employee use of Marubeni computers were subject to an Electronic Communications Policy.  Among other things, this policy advised employees that all emails sent, received or stored in the company's computer system were the property of the company.  The policy further prohibited the use of the company's computer system for personal purposes, and warned employees that they should have no expectation of privacy in the company's system or any email sent or received therefrom.

Communications Discovered In Temporary Internet Files Of Company Computers

Plaintiffs commenced a civil rights action against Marubeni.  In the course of assembling documents for disclosure to the plaintiffs, Marubeni discovered a number of communications in the temporary internet files of the computers assigned to plaintiffs that appeared to constitute privileged communications between plaintiffs and their counsel.  Copies of these materials were delivered to plaintiffs. 

Privileged Waived Because Communications Not Kept Confidential

The defendants subsequently sought an order that such communications could be used in this lawsuit because any privilege attendant thereto had been waived.  The court agreed, and directed plaintiffs to disclose the communications in question.

The attorney client privilege only shields from disclosure confidential communications between a client and his attorney.  Because the communications were transmitted over, and captured by a company computer system as to which plaintiffs were apprised in advance they had no expectation of privacy, the court held that plaintiffs could not establish that these communications were kept confidential.  As a result, plaintiffs were held to have waived any privilege attendant to such communications because of the failure to keep them confidential.  Said the court:

Although the court finds that 15 of the email messages noted in the plaintiff's privilege log are attorney-client communications or attorney client related communications … the court is not persuaded that the plaintiffs have established that these communications were confidential.  Confidentiality is an aspect of a communication that must be shown to exist to bring the communication within the attorney client communication privilege. …  In the instant case, the plaintiffs elected to use the MAC computers assigned to them to prosecute their employer's work.  The plaintiffs contend they used their private password protected email accounts to communicate with their attorney and with each other, to protect the confidentiality of their communications.  However, when the plaintiffs determined to use MACs computers to communicate, they did so cognizant that MAC's [electronic communications policy] was in effect and that under MACs [electronic communications policy] (a) use of MAC's automated systems for personal purposes was prohibited; (b) MAC employees 'have no right of personal privacy in any matter stored in, created or sent over the email, voice mail, word processing and/or internet systems provided' by MAC and (c) MAC had the right to monitor all data flowing through its automated systems.  ….  The computer use policies admonishment to MAC's employees that they would not enjoy privacy when using MAC's computers or automated systems is clear and unambiguous.  The plaintiffs disregarded the admonishment voluntarily and, as a consequence, have stripped form the email messages referenced above the confidentiality cloak with which they claim those communications were covered.  Accordingly, the 15 relevant email messages identified in the plaintiffs' privilege log are not shielded from disclosure by virtue of the attorney client communication privilege.

For the same reason, the court held that plaintiffs had also waived work product privileges that would otherwise have attached to some of these emails.

Finally, the court held that the inadvertent disclosure rule did not protect these communications from use by the defendants.   To fall within the ambit of this rule, the disclosure in question had to be inadvertently made by the party seeking application of the rule.  Because the communications at issue were discovered by the company via a review of its own computer system, and not via a disclosure from the plaintiffs, the rule was held inapplicable.

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