Nearly a century ago, E.M. Forster posed the question: "How
can I tell what I think till I see what I say?"1
This question continues to resonate today, particularly when
considering our use of electronic communications. Whether via
email, text message, Facebook or Twitter, our messages too often
devolve into a stream of consciousness. This has lead to some
remarkable consequences – ranging from the embarrassing
to the tragic. Electronic communications are an integral part of our personal
and professional lives. It is little wonder why – they
provide virtually unfettered access to persons and a rapid, if not
instantaneous, platform with which to communicate. These benefits,
however, are not without a cost. Indeed, the speed of communicating
in this way can strip contemplation away from even the most
thoughtful writer. Fostered by the detachment that simply typing on
a computer or cellular phone provides, our communications too often
become unfiltered missives, without much thought to the potential
repercussions. With the overlay of electronic discovery virtually etching our
communications into the proverbial stone, and an evolving
jurisprudence eroding the protection of certain communications from
disclosure, companies and employees should periodically take stock
of their practices relating to emails and other forms of electronic
communication. Consideration is once again warranted, particularly in light of
a recent decision by a federal court in Louisiana related to the
Deepwater Horizon disaster. In the opinion, the Court ordered the
disclosure of a husband's personal emails to his wife from his
work account, in spite of the long-standing and recognized marital
privilege, which generally precludes the disclosure of confidential
communications between a married couple. In re Oil Spill by the
Oil Rig "Deepwater Horizon" in the Gulf of Mexico
on April 20, 2010, No. 10-md-02179-CJB-SS (E.D. La. Mar.
28, 2011).2 On April 20, 2010, the Deepwater Horizon oil rig leased by BP
PLC experienced an explosion causing the rig to sink. As a result,
more than four million barrels of oil were spewed into the Gulf of
Mexico making it the world's largest accidental maritime oil
spill. In August 2010, a United States judicial panel consolidated
approximately 300 actions in multidistrict litigation before U.S.
District Judge Carl Barbier in New Orleans. Claims include wrongful
death and economic and environment damages. The issue resolved by this decision involved nearly 100
documents containing emails exchanged between two BP employees:
Brian Morel, a drilling engineer at BP, and his wife, a production
engineer. Because these emails were sent from Mr. Morel's and
his wife's respective email accounts, BP produced them in
response to discovery demands made by the plaintiffs. Mr. Morel,
who advised through his counsel that he would assert his Fifth
Amendment right against self-incrimination at his scheduled
deposition, sought the return or destruction of these emails
asserting the marital privilege. Prior to the litigation, BP implemented various policies placing
employees on notice that emails sent over the BP system were: (a)
the property of BP; (b) not private; (c) subject to monitoring or
auditing at any time without notice; and (d) subject to potential
compulsory disclosure. For example, an initial pop-up screen appeared on BP computers,
which provided: "[w]ithin the bounds of law, electronic
transmissions through internal and external networks may be
monitored to ensure compliance with internal policies and
legitimate business purposes." In addition, BP's Global Email Policy stated: "[a]ll
electronic files kept on the email system ... are subject to
potential compulsory disclosure by subpoena ... . And[w]hilst
respecting privacy principles, BP specifically reserves the right,
within the bounds of law, to access electronic communications ...
." Furthermore, BP's Code of Conduct Policy provided that all
"personal data, information or electronic communications
created or stored on company computers or other electronic media
such as hand-held devices are not private." BP also reserved
the right to monitor and/or record electronic communications
without providing notice to the employee. Plaintiffs seeking the disclosure argued that BP's policies
and notifications undermined any reasonable expectation of privacy
and constituted Mr. Morel's waiver of any marital
privilege. Counsel for Mr. Morel responded that the presence of BP's
policies simply was not enough; the question was whether or not
these policies were ever implemented. Furthermore, counsel argued,
Mr. Morel had an otherwise reasonable expectation of privacy,
relying on the four factors set forth in In re Asia Global
Crossing, Ltd., 322 B.R. 247, 257 (Bankr. S.D.N.Y. 2005).
Namely, counsel identified that: (1) BP permitted the personal use
of company email; (2) it did not indiscriminately or randomly
monitor its employees' emails; (3) no third party other than BP
had a right to access Mr. Morel's email account; and (4)
BP's notification statements were insufficient to overcome the
presumption of confidentiality. Relying on case law from the Seventh Circuit and various federal
district courts, including the Southern District of New
York,3 U.S. Magistrate Judge Susan Shushan concluded Mr.
Morel's emails were discoverable. The Court concluded that by
virtue of BP's policy announcing that employee emails
could be monitored, accessed and subject to disclosure by
subpoena, Mr. Morel had no objective, reasonable expectation of
privacy in his communications with his wife. Review of Company Policies Regarding Email
Communications This case serves as yet another painful reminder of the
potential disclosure of electronic communications – even
those intended to be confidential. Companies are well-advised to
consider their policies and notifications regarding email
communications to ensure that current procedures adequately place
employees on notice. This places companies in a better position to
navigate potential disclosure disputes. It would be similarly
beneficial for companies to remind their employees of their
individual policies. At the very least, this knowledge may prevent
embarrassing or intimate communications from being disclosed in the
future. Endnotes 1 E.M. Forster, Aspects of the Novel
(1927). 2 This decision is publicly available on Public Access to
Court Electronic Records (PACER). 3 The authorities cited by the court were: Muick v.
Glenayre Electronics, 280 F.3d 741 (7th Cir. 2002), U.S.
v. Etkin, No. 07-913, 2008 WL 482281 (S.D.N.Y. Feb. 20, 2008);
and Sims v. Lakeside, No. 06-1412, 2007 WL 2745367 (W.D.
Wash. Sept. 20, 2007). The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Factual Background
BP's Policies Regarding Employee Email Communications
Arguments Advanced by the Parties
Judge Shushan's Decision