E-Discovery Alert

2009 WL 3097207 ( S. D. FL September 23, 2009)

Plaintiff did not meet his burden in proving emails from his attorney to another attorney were privileged because he had no expectation of privacy for the emails sent using the corporate server.

The Plaintiff argued that an email from his attorney to another attorney(employed by the company) providing him assistance was protected by attorney-client privilege. The court determined that the issue would turn on whether an employee has an expectation of privacy in computer files or email and listed four factors that a court should consider in determining whether an employee has an expectation of privacy in computer files or email: 1) does the corporation maintain a policy banning personal or other objectionable use, 2) does the company monitor the use of employee's computer or email, 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. The court said, ".Each of these factors are present here. Leor's employee handbook states that Leor owns all electronic communications and that individuals using the Leor email system have no expectation of privacy... The Leor employee handbook expressly states:'Employees should have no expectation of privacy with regard to communications made over [Leor's] systems... The employee handbook further advises that “[Leor representatives] may access and monitor the use of its systems and equipment from time to time” and that “employees should not use Leor's electronic ... communications systems to communicate, receive, or store information that they wish to keep personal or private.'" The court concluded by stating, " As the party invoking the attorney-client privilege, Aguiar has the burden of establishing its applicability. Aguiar has not met this burden because he has not shown a reasonable expectation of privacy in emails transmitted through Leor's server."

Leor.pdf

Rehberg v. Paulk et al
2010 WL 816832 (11th Cir. March 11, 2010)

Plaintiff did not have reasonable expectation to privacy of email that he had sent to third parties.

The Plaintiff sent anonymous faxes to a local hospital that were critical of the management there. The DA’s office opened an investigation and issued subpoenas to Rehberg's phone company and internet provider. Pursuant to 42 USC §1983, the Plaintiff sued the former District Attorney, a specially appointed prosecutor, and chief investigator for malicious prosecution, retaliatory investigation and prosecution. He alleged that they lacked probable cause to initiate an investigation against him. He also argued that his right to privacy had been violated and that he had been subject to an illegal search and seizure. The district attorneys and investigator moved for summary judgment, arguing immunity. The district court denied the motion.

The Eleventh Circuit determined Rehberg had voluntarily provided the emails to third parties, therefore he did not have a reasonable expectation of privacy. The court said, "Rehberg’s voluntary delivery of emails to third parties constituted a voluntary relinquishment of the right to privacy in that information. Rehberg does not allege Hodges and Paulk illegally searched his home computer for emails, but alleges Hodges and Paulk subpoenaed the emails directly from the third-party Internet service provider to which Rehberg transmitted the messages. Lacking a valid expectation of privacy in that email information, Rehberg fails to state a Fourth Amendment violation for the subpoenas for his Internet records. Because Rehberg’s allegations related to the subpoenas do not state a violation of a constitutional right, the district court erred in denying qualified immunity to Hodges and Paulk on Rehberg’s subpoena claims."

Rehberg.pdf