Leor Exploration & Prod., LLC v. Aguiar, 2009 WL 3097207 (S.D. Fla. Sept. 23, 2009)
In this case, the court overruled the determination of the special master and held that defendant had no reasonable expectation of privacy as to emails transmitted through plaintiff’s server and thus, no attorney-client privilege as to those communications.
At issue before the court was an email sent from defendant’s counsel, Paul McCawley, to plaintiff’s Vice President and In-House General Counsel, Garret Smith, regarding a prior conference call attended by defendant Aguiar, McCawley, Smith and another lawyer for plaintiff. At the time of the call, defendant Aguiar was CEO and Vice-Chairman of the plaintiff corporation.
Evidence was presented that during Aguiar’s employment with plaintiff, Garret Smith served as Aguiar’s personal advisor. Accordingly, Aguiar claimed the email was a privileged communication between his counsel (McCawley) and his “personal advisor and agent” (Smith). Issues of whether the relationship between Aguiar and Smith was sufficient to establish privilege aside, the court ruled that the email in question “[was] not protected by the attorney-client privilege because Aguiar had no reasonable expectation of privacy…”
“Confidentiality is essential to the attorney-client privilege…Under the statute ‘[a] communication between lawyer and client is ‘confidential’ if it is not intended to be disclosed to third persons other than…[t]hose to whom disclosure is in furtherance of the rendition of legal services to the client.’” Per the court, “Aguiar [did] not establish the intent to maintain [the email] confidential.”
In support of its reasoning, the court noted, “[a]t the time he sent the email, Mr. McCawley knew Mr. Smith was an attorney and that he worked for Leor. It is undisputed that Mr. McCawley sent the email to Mr. Smith’s Leor email account.” Accordingly, the court found, “Aguiar had no reasonable expectation of privacy in emails transmitted through Leor’s server.” The court set forth four factors for consideration in determining whether an employee had a reasonable 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 the 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?
Per the court, each of the factors was present in the case. Specifically, “Leor’s employee handbook stat[ed] that Leor owns all electronic communications and that individuals using the Leor email system have no expectation of privacy.” The handbook further advised that Leor may access and monitor the use of its systems and that employees should not use Leor’s system to communicate anything they wished to keep private.
Aguiar argued that Leor’s authorization for Mr. Smith to personally advise him implied an understanding that the nature of the relationship superseded any “generic handbook” regarding the level of confidentiality in email communications. The court disagreed stating, “[t]here is no evidence that…anyone at Leor made assurances to Aguiar that he could disregard Leor’s email policy so long as Mr. Smith was acting as Aguiar’s personal advisor” and noting that “the record establish[ed] that both Mr. Smith and Aguiar…were subject to the email policy.”
Accordingly, the court held that the email was not protected by the attorney-client privilege.