Commercial Litigation and Arbitration

Attorney-Client Privilege — Email — Waiver by Use of Another’s Computer

The question in Geer v. Gilman Corp., 2007 U.S. Dist. LEXIS 38852 (D. Conn. Feb. 12, 2007), an age discrimination action, was whether the plaintiff waived the attorney-client privilege by using the computer and email of her fiancй, and by having her fiancй assist her in ministerial maters, such as proofreading her communications to her attorney. Magistrate Judge Joan Glazer Margolis found no direct precedents, so she looked at cases addressing whether an employee's use of his or her employer's computer to send confidential e-mails to his or her attorney waives the privilege. She cited In Re Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005), for a four-part test:

(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee's computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?

Observing that the Asia Global Crossing Court did not reach a conclusion on the facts presented to it, Magistrate Judge Margolis turned to Curto v. Medical World Communs., Inc., , 2006 U.S. Dist. LEXIS 29387 (E.D.N.Y. May 15, 2006), which found no waiver where the employee worked primarily out of her home office, and was initially issued one laptop, which was replaced by another. When she exchanged the first for the second, she deleted all her personal files, including emails, from the first laptop, and when she returned the second after she was terminated, she similarly deleted all personal files, including e-mails, from the second laptop. No waiver was found even though, two years later, the employer’s forensic computer consultant was able to retrieve deleted data from the laptops, because the laptops were not connected to the corporate server and there was no monitoring of her email traffic during her employment.

The Gilman Court held that the fiancй's involvement did not effect a waiver, among other reasons because the fiancй committed to maintain the material in confidence, had a limited role, and, the Court found, the fiancй ‛can be considered an ‘agent’ of plaintiff, because by providing his computer and e-mail to plaintiff, he became a ‘conduit’ for plaintiff's communications with her attorney (citing ECDC Envtl., L.C. v. N.Y. Marine & Gen. Ins. Co., 1998 U.S. Dist. LEXIS 8808 (S.D.N.Y. June 4, 1998)), in which Magistrate Judge Henry Pitman found no waiver where the disclosure was limited to the plaintiff’s environmental consultants in the proceedings).

Share this article:


Recent Posts