DeGeer v. Gillis, 2010 WL 3732132 (N.D. Ill. Sept. 17, 2010)
In this case, the court addressed the question of waiver as to nine privileged emails. As to six emails inadvertently produced by a third party, waiver was averted by the terms of a Stipulated Protective Order entered by the court which precluded waiver by inadvertent production. As to three other emails, the question of waiver turned on plaintiff’s use of his work computer to send the messages. Relying on evidence that plaintiff’s employer did not believe such use would waive privilege, the court ruled privilege was not waived.
In August 2009, while employed by Huron Consulting Services, LLC [“Huron”], plaintiff was required to deliver all Huron-related electronic data in his possession to Huron’s counsel in connection with an internal investigation. Plaintiff was specifically directed by Huron’s counsel not to remove any materials from the Huron-issued laptop and thus did not delete three privileged emails contained thereon. Plaintiff “maintained his privilege in these communications” with Huron’s counsel, however, by alerting them (through his counsel) to the existence of the emails and requesting they be removed before any electronic data production. Huron’s counsel complied.
In June 2010, Huron produced an external hard drive in response to defendants’ subpoena which contained the image of plaintiff’s hard drive as well as additional data provided by plaintiff and copies of emails that resided on Huron’s server. Thereafter, plaintiff and his counsel became aware that six privileged emails had been produced. Unlike the three previously identified privileged emails sent from plaintiff’s work email, these messages were sent from plaintiff’s personal email account and had been maintained on Huron’s servers unbeknownst to plaintiff and his counsel.
Plaintiff asserted that all nine of the emails were protected as privileged. Defendants objected and plaintiff sought a finding sustaining his claims.
Finding the emails were subject to the attorney-client privilege, the court turned to its analysis of waiver.
As to the six later-discovered emails, the parties disagreed on how they came to be produced. Defendants argued the emails were likely present on plaintiff’s laptop when it was provided to Huron. Plaintiff disagreed and, relying on the explanation of Huron’s counsel, asserted that the external drive was searched for privileged emails by Huron prior to its production, using the names of plaintiff and his attorneys. Accordingly, Huron’s counsel opined that the six emails were added after August 2009 when Huron copied additional materials from its server and added them to the data it had obtained from plaintiff. The court found this explanation credible and found that the “six additional communications sent via [Plaintiff’s] personal email address were likely pulled from Huron’s server and added to the external drive after [Plaintiff] provided Huron with his electronic data.”
Having established how the six emails came to be produced, the court turned to its analysis of waiver, pursuant to Rule 502. Specifically, Rule 502(d) states that “an agreement on the effect of disclosure in a Federal proceeding is binding on only on the parties to the agreement, unless it was incorporated into a court order.” In this case, a Stipulated Protective Order was entered by the district court judge and contained a provision that inadvertent production would not result in waiver. The court determined that Huron’s production of the six emails was inadvertent and thus, privilege was not waived.
Turning next to the three privileged emails that were turned over to Huron, the court determined that the “typical inadvertent disclosure analysis” did not apply because the emails were not inadvertently or mistakenly produced because plaintiff knew of their existence but followed the instruction not to delete them before turning them over to a third party. As the court noted, however, plaintiff nonetheless “took affirmative steps to maintain the confidentiality of … the communications.” Accordingly, the relevant question was whether plaintiff waived the attorney-client privilege by communicating with counsel using his work email and laptop.
Courts have developed a five factor test to determine whether information stored on an employer’s computer waives privilege: “(1) does the employer maintain a policy banning personal use of e-mails; (2) does the employer monitor the use of its computer or e-mail; (3) does the employer have access to the computer or e-mails; (4) did the employer notify the employee about these policies; and (5) how did the employer interpret its computer usage policy?”
Quickly dispensing with the first four factors, the court determined, “[t]he final factor is controlling here.” The court reasoned that because Huron’s counsel conducted a privilege review on plaintiff’s behalf before responding to defendants’ subpoena (recall the search of the hard drive using privileged names), Huron demonstrated its belief that employees did not waive privilege by communicating with counsel using their work addresses or computers:
If Huron interpreted its computer usage policy as meaning that employees waive the attorney-client privilege by using their work email addresses and Huron computers to communicate with counsel, such a review would have been unnecessary and violated Huron’s obligation to produce all non-privileged responsive documents responsive to Defendant’s subpoena. Id. Accordingly, the Court finds that DeGeer did not waive the attorney client privilege with respect to the three email communications Huron withheld from its production of DeGeer’s hard drive.
A full copy of the opinion is available here.