A Kentucky law firm narrowly escaped a waiver of privilege via adherence to Rule 502 (b). After carelessly turning over privileged e-mails; Wood, Wood and Young (of Maysville Kentucky) learned the hard way that turning over reams of e-mail absent careful redaction of privileged communications can have serious consequences. Fortunately, the firm adhered to Rule 502 (b) after opposing counsel put them on notice that privileged communication had been disclosed. In GATX Corp v. Appalachian Fuels, LLC, 2010 U.S. Dist. LEXIS 129706 (E.D. Ky. Dec. 7,2010) the employees merely communicated with counsel via e-mail on a range of topics, some privileged and in the ordinary course of business. Unlike phone calls and snail mail, those communications were easily retrievable, voluminous in nature, and consequently less readily subject to redaction.
Continue ReadingIt happens all the time. To expedite the litigation process, parties reach agreements as to the scope and timing of electronic discovery. After all, who wants to delay litigation with the lengthy and expensive review of a universe of documents when you can significantly shrink that universe without compromising the quality of your production by agreeing on a set of specific custodians? The parties in Wixon v. Wyndham Resort Development Corp. reached an agreement that by a specific date, Wyndham would produce electronically stored information (“ESI”) held by specific custodians that matched specific search terms. But what happened when, after the deadline, Wyndham revealed a stash of ESI found in a shared directory of a hard drive not allocated to a specific custodian? Does a document not directly linked to a specific custodian automatically become “nonresponsive”?
Continue ReadingThis is the second video by Joscelyn from the eLessons Learned series on Stengart, dealing with the March 30 New Jersey Supreme Court decision favoring privacy over waiver of attorney-client privilege.
(See also: Fernando M. Pinguelo, "New Jersey Supreme Court Rules That Employees Retain Privacy and Privilege of Attorney-Client Communications Made from Work," Digital Discovery & E-Evidence, Vol. 10 No. 5, The Bureau of National Affairs, Inc. (BNA) April 15, 2010.) The New Jersey Supreme Court has a long history of affording New Jersey citizens broader privacy protection rights than those offered by the federal government. For example, the New Jersey Supreme Court has held that citizens have a reasonable expectation of privacy in their bank account records, in their garbage, and in the personal information linked to their IP addresses. Thus, when the question of whether an employee who uses a company computer to access e-mail communications between her and her attorney maintains the confidentiality of those communications, it was no surprise that the Court held that the act of an employee who accesses her attorney-client communications via a company laptop does not destroy the privilege.
Continue ReadingBlogger Joscelyn briefs us on the Stengart v. Loving Care case in this video eLesson.
So what is all the fuss about Stengart v. Loving Care Agency, Inc. et al.? Why are eDiscovelebrities and employment lawyers alike watching the case so closely? Why should YOU be watching? Privacy! (And eDiscovery, of course) “It” (Stengart, the fuss, the Supreme Court of New Jersey, this post, all this blog attention) all boils down to whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer sent and received (during work hours) using the employer’s computer and IT systems. According to the trial court, Stengart did not have a reasonable expectation of privacy and the emails were properly retrieved and used by the employer and its lawyers in defense of the lawsuit. According to the appeals court, not only did she (have a reasonable expectation of privacy), but also the appeals court took issue with the way the company lawyers handled the situation and queried whether the lawyers acted inappropriately when they retrieved and used these emails – and whether they should be sanctioned and/or thrown off the case. Ouch!
Continue ReadingProtecting your privacy starts with you! When sending an email, keep in mind where you are sending it from – it may not be as private as you may think (or expect). In Leor v. Aguiar, the court found that the CEO had no reasonable expectation of privacy in emails he transmitted through his employer’s server, thus, he could not meet the burden necessary to establish attorney-client privilege in an email he sent to his attorney from work, resulting in the e-mail losing protection from disclosure. Compare Stengart v. Loving Care Agency, Inc., New Jersey Superior Court, docket no. BER-L-858-08 (similar holding) with Stengart v. Loving Care Agency, Inc., 408 N.J. Super. 54 (App. Div. 2009) (reversing trial court and finding no waiver of privilege) (certification granted by the New Jersey Supreme Court and decision pending). The court iterated that whether an employee had a reasonable expectation of privacy in his/her emails transmitted through an employer’s server should be determined on a “case-by-case basis.”
Continue ReadingEarlier we reported that a New Jersey state trial court found that a former employee waived the attorney-client privilege when she decided to use company time, equipment, and resources to communicate with her lawyer (see Stengart v. Loving Care). Recently, an appellate court reversed that ruling and framed the issue “whether workplace regulations converted an employee’s emails with her attorney” sent through the employee’s personal, password-protected, web-based email account, but via her employer’s computer “into the employer’s property.” Plaintiff had argued that the company failed to demonstrate that it had ever adopted or distributed the policy in question, that she was unaware that the policy applied to her, and even if the policy did exist, the company had not previously enforced it. The company argued that it had disseminated the policy, and that the policy did apply to the plaintiff. The appellate court determined that issues of material fact existed as to whether the policy at issue was in place and disseminated at the time of plaintiff’s employment and as to whether the policy applied to plaintiff; and that these issues could not be resolved by the trial judge without a hearing on the matter.
Continue ReadingPlaintiff companies Laethem Equipment company and Laethem Farm Service Company (collectively “Laethem”) were involved in a lawsuit with Deere and Company (“Deere”) involving claims of breach of contract, tortious interference with business relationships and violations of state trade secret law. The judge ordered the parties to secure all electronically stored information and metadata and to file a data log, summarizing the secured data, with the court. Pursuant to discovery requests, Laethem allowed Deere to go to Laethem’s attorney’s office in order to copy documents. During this session, Laethem inadvertently disclosed several documents that were protected by the attorney-client privilege. Deere sought a court order that Laethem’s actions constituted waiver of the privilege. Deere argued that because Laethem turned over disks containing privileged documents and delayed in objecting to the disclosure, Laethem had waived attorney-client privilege with respect to the documents contained on the disks.
Continue ReadingFrom the second we stepped foot in law school we learned that the attorney-client privilege was sacrosanct. While by no means absolute, we knew it was pretty hard to gain access to the communications between an attorney and client. Waiver just became a little more likely in New Jersey. A state trial court decision underscores the reality that email communication is too often treated informally and we as attorneys can no longer assume a client’s “personal” email account is truly personal. For while the account itself may be, the means by which the message was sent, may not. Recently, a New Jersey trial court had occasion to determine whether an employee’s use of her employer’s computer and server to communicate with her lawyer waived the attorney-client privilege. In Stengart v. Loving Care Agency, Inc., docket no. BER-L-858-08, the court held that it did; and the ruling highlights for employers the importance of having a detailed employee handbook and technology system protocol in place; and for lawyers the importance of making sure that communications from clients come by way of truly personal means. Click here for full article.
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