Electronic Discovery Law
Use of Employer-Issued Laptop Computer by Criminal Defendant for Attorney-Client Communications Does Not Waive Privilege
People v. Jiang, 33 Cal.Rptr.3d 184 (Cal. Ct. App. 2005)
Weibin Jiang ("Jiang"), a native of China with limited English language skills, was convicted and sentenced to state prison for 19 years and 4 months in connection with sexual offenses against A., an acquaintance. The trial court improperly denied Jiang's motion to suppress his statement to police (Miranda warnings were not adequately translated and conveyed), and his conviction was reversed. In addition, the trial court erred in finding that materials prepared by Jiang for Jiang's attorneys and stored on his employer-issued laptop computer were not subject to the attorney-client privilege.
Jiang was arrested on January 15, 2002 and released on bail ten days later. In February, his employer-issued laptop was taken pursuant to a search warrant. In March, Terrance Daily ("Daily") replaced Richard Pointer as defense counsel. The prosecutor issued a subpoena duces tecum to Cadence Design Systems ("Cadence"), Jiang's employer. It sought all English correspondence authored by Jiang in order to establish Jiang's English proficiency. The prosecutor agreed to ask Cadence not to include any documents addressed to an attorney in response to concerns by Daily about privileged documents on a second laptop supplied by Cadence.
Cadence supplied a CD and corresponding printouts to the trial court in June 2002. The prosecutor represented that the documents reflected all the contents of the CD. Daily found no privileged material in the documents, and the court released them to the prosecutor along with the CD (copies of which were supplied to defense counsel.) Several months later, the prosecutor discovered blocked access documents on the CD which had not been printed, but did not notify defense counsel.
In January 2003, Jamie Harmon ("Harmon") replaced Daily as defense counsel. In March, the prosecutor requested the access code for the newly discovered documents from Cadence. The prosecutor's investigator reported that the documents were password protected due to possible attorney-client privilege and had not been viewed.
Before using the access code, the prosecutor brought the matter before the trial court. She decided that the blocked documents were not privileged and "were left in a public place." She said that she would use the code to access the files and then supply relevant copies to defense counsel. The court replied, "Certainly we can take that under submission until such time you have had an opportunity to research any objections counsel may have as to those documents." Harmon made no objection, assuming that these were documents from the first Cadence laptop. Upon receipt of the documents, however, she immediately informed the prosecutor that these were attorney-client privileged communications between defendant and his former counsel and filed a motion seeking dismissal, mistrial, or recusal of the district attorney's office and suppression of the documents.
The trial court held that Jiang did not have a reasonable expectation of privacy in documents placed on the Cadence laptop, noting that the other laptop had been seized. This was in error. The documents are subject to attorney-client privilege, and the privilege had not been waived. The documents were prepared at the direction of Jiang's attorney, protected by a password known only to defendant and his wife, placed in a folder called "Attorney" to protect them from disclosure, and communicated to Jiang's attorney.
The prosecutor attempted to overcome the presumption of confidentiality by relying upon the Cadence "Employee Proprietary Information and Inventions Agreement" which gave Cadence the right to inspect the laptop. However, Jiang had an objectively reasonable belief in the confidentiality of the documents, and nothing in Jiang's agreement with Cadence would make a reasonable person think otherwise. (See FN16, where the court notes that the intent of the party rather than objective reasonableness should be the standard under Cal.Evid.Code ¬ß 952, but it need not reach this issue since the trial court erred even under the objective standard.) The Cadence agreement was to protect Cadence's intellectual property, not to facilitate the invasion of an employee's personal documents. Jiang was not prohibited from using the laptop for personal matters and nothing would lead Jiang to believe that Cadence would access his personal, segregated, password-protected materials.
Jiang did not waive the attorney-client privilege. No evidence was presented to indicate that he had consented to or authorized any waiver of the privilege. A timely assertion of privilege was made in 2002 when the second laptop computer was subject to subpoena, and the prosecutor represented that no attorney-client materials would be included. She also stated that the printed documents constituted the entire contents of the CD from Cadence, and Daily carefully reviewed these printed documents for privilege - defendant's computer-illiterate counsel did not know about any additional materials on the CD and had been mislead by the prosecutor.
The prosecutor's statements did not clearly describe which documents were at issue when she proposed to Harmon and the trial court that she would access the files. Evidence suggests that defendant thought the CD contained material from Cadence's servers rather than privileged material from the second Cadence laptop, and Harmon thought the CD contained email from the first laptop. Furthermore, the trial court's statement in response might have been interpreted as reserving claims of privilege for a later time. These documents must be suppressed, and if the case is to be brought again a hearing must be held to address whether the prosecutor or the entire district attorney's office must be subject to recusal based on exposure to the privileged communications.
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