Designer Skin LLC v. S & L Vitamins, Inc., et al.
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:
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.