Law Blog 2.0 » Attorney-Client Privilege

Analysis of Former Employee’s Laptop Can Raise Privilege Issues

Robert Hudock — Fri, 10 Jul 2009 01:59:35 +0000

Aggressive E-Discovery

In Stengart v. Loving Care Agency, Inc. et al., --- A.2d ----, 2009 WL 1811064 (App. Div. 2009 Docket No. A-3506-08T1, published June 26, 2009), a three judge panel of the New Jersey Appellate Division ruled, despite a written policy to the contrary, an employee had a “reasonable expectation of privacy” in e-mails with her attorney via an employer-owned laptop. The Court remanded the case for a determination of appropriate sanctions, including possible disqualification of the employer's counsel. The policy in question was ambiguous in part because it contained an “occasional use exception”. The fact that the employee used a web email account opposed the employers email system was significant: These communications pertained to plaintiff's anticipated suit against the company, and were sent from plaintiff's work-issued laptop but through her personal, web-based, password-protected Yahoo email account. Stengart at 2. Moreover, the court noted:

The references to the use or misuse of this "e-mail system" in paragraph 4 could reasonably be interpreted to refer only to the company's work-based system and not to an employee's personal private email account accessed via the company's computer.

Stengart at 10. For purposes of the decision the Court assumed that the Defendant employer had a well-publicized electronic communications policy that made all aware that the employer's computer and system (including those allowing for Internet access) were all company property, to be used for company business, and that the company believed that there was no reasonable expectation of privacy in any communications that an employee had through such equipment or system because the communications were, as announced in the policy, subject to monitoring, were considered the property of the company, and were embedded within the company's physical property. There were a couple factual points not clarified in the opinion. First, were the emails sent from the employer owned laptop from the employee’s home using the employee’s email or were the emails sent from work? Second, how did the employer gain access to the cached email data from browser history – and – whether the procedure involved bypass yahoo security controls? There are three files created by when using Yahoo! Email: ShowLetter, ShowFolder, or Compose. Browsers will not work because there is Javascript code at the start of each file, which checks if the user who is accessing this page has been logged in to Yahoo! Mail or not. If not, it redirects the individual to the login page. This can be bypassed by opening the .html file in a text editor, and deleting references to “log-in”. For example, the following lines:

Analysis of Former Employee’s Laptop Can Raise Privilege Issues originally appeared on Law Blog 2.0 on July 10, 2009.

California Electronic Discovery Act Signed Into Law — Takes Effect Immediately

Robert Hudock — Tue, 07 Jul 2009 05:30:07 +0000

The California E-Discovery Act (“the Act”) establishing procedures for a party to obtain electronically stored information (ESI), similar to the Federal Rules of E-Discovery (December, 2006), was signed into law on June 29 by Governor Arnold Schwarzenegger. The Act implements new rules for electronic discovery in California civil cases. The Act tracks the 2006 amendments to the Federal Rules of Civil Procedure.

Key similarities between the Federal Rules and the California Act include: (i) the definition of “electronically stored information” as “information that is stored in an electronic medium” including “technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities”; (ii) a Safe Harbor for good faith document destruction resulting in the loss of ESI; (iii) unreasonable e-discovery requests are prohibited; (iv) a party should produce records as normally kept in the ordinary course of business or in a reasonable useable format (note exception where a specific format is requested discussed below).

Key differences under the California Act include: (i) the right of a party to request production in a specific format; (ii) a responding party bears the burden of proving that data are inaccessible; and (iii) an explicit right to inspect, copy, test, and or sample ESI in the possession or control of a third party.

Limits on ESI Discovery can be appropriate where: (i) the information can be produced from a less-burdensome source, (ii) the discovery sought is unreasonably cumulative or duplicative, or (ii) the burden of producing the ESI outweighs the benefit.

ESI that “is from a source that is not reasonably accessible because of undue burden or expense” shall not be produced, provided the responding party provides written responses identifying data classified as inaccessible and the responding party takes affirmative action to seek a protective order and bear the burden of demonstrating that the ESI is in accessible. If it is established that the electronically stored information is from a source that is not reasonably accessible because of undue burden or expense, the court may nevertheless order discovery if the opposing party shows good cause.

A party that inadvertently produces ESI that is subject to a claim of privilege or attorney work product protection may seek the return of the ESI by notifying the receiving party. Upon notice, the opposing party must sequester or return (and not use) the ESI until the claim of privilege is resolved. The opposing party, where appropriate, may file a motion within 30 days to contest the producing party’s claim of privilege.

California Electronic Discovery Act Signed Into Law — Takes Effect Immediately originally appeared on Law Blog 2.0 on July 7, 2009.