Public Policy Dictates that Web-Based Privileged Emails Be Protected, Notwithstanding

[Administrator]

Sims v. Lakeside School, 2007 WL 2745367 (W.D. Wash. Sept. 20, 2007)
In this employment discrimination case, defendant Lakeside sought an order from the court allowing the review of a hard drive image of a laptop computer furnished to plaintiff while he was employed at Lakeside. After plaintiff’s counsel raised an objection to the imaging of the hard drive, Lakeside agreed not to review its contents, and the parties attempted to resolve the issue on their own. When the parties were unable to reach agreement, Lakeside moved to compel the review of the image.
The court granted the motion in part, and denied it in part. The court found that the plaintiff had no reasonable expectation of privacy in the contents of the laptop that was furnished by Lakeside, including emails he sent and received on his Lakeside email account. However, the court ruled that web-based emails generated by plaintiff, and any material he created to communicate with his attorney and his spouse, were protected under the attorney-client privilege and the marital communications privilege.
The court explained that Lakeside’s employee manual was “unequivocally clear” in stating that user accounts were the property of Lakeside School, and that they were to be used for academic and administrative purposes only. “Furthermore, where an employer indicates that it can inspect laptops that it furnished for use of its employees, the employee does not have a reasonable expectation of privacy over the employer-furnished laptop.” There was no dispute that plaintiff received a copy of this policy and signed an acknowledgment that he read and reviewed the policy. Consequently, the court held that plaintiff was on notice that he did not possess a reasonable expectation of privacy in the contents of his laptop, or in the emails he sent and received using Lakeside's accounts.
The court viewed web-based emails differently:

However, to the extent that the laptop contains web-based e-mails sent and received by plaintiff Sims and any other material prepared by plaintiff Sims to communicate with his counsel, the Court agrees with plaintiff that such information is protected under the attorney-client privilege and the marital communications privilege. Notwithstanding defendant Lakeside's policy in its employee manual, public policy dictates that such communications shall be protected to preserve the sanctity of communications made in confidence. See e.g., United States v. Louisville & Nashville R .R., 236 U.S. 318, 336, 35 S.Ct. 363, 369 (1915) (recognizing that the attorney-client privilege is predicated upon the belief that it is in the public interest to encourage free and candid communications between clients and their attorneys, by protecting the confidentiality of such communications).

Accordingly, the court ruled that Lakeside was entitled to review the contents of plaintiff’s hard drive and the Lakeside emails contained therein, but that it was not permitted to review any web-based generated emails, or materials created by plaintiff to communicate with his counsel or his wife.

In addition, the court adopted Lakeside’s proposed format for the review of materials on the laptop, and ordered the parties to comply with defendant’s proposal:

Lakeside would be willing to have its own expert, at its own expense [ ], provide both parties' counsel with a list of files (deleted and active) from Mr. Sims' computer ... Plaintiffs' counsel can then identify any files they believe are privileged, as well as the nature of the privilege being asserted. Lakeside will then review any remaining files over which no claim of privilege is made, and will determine whether any of plaintiffs' privilege designations should be challenged.

A copy of the full order may be viewed here.



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