United States: Federal Court Holds That E-Mail Received By Employee From Lawyer On His Work E-Mail System Is Not Privileged

Last Updated: June 17 2013
Article by Michelle Gitlitz Courtney and Joseph Poluka

In a recent decision, Judge Roslynn Mauskopf, United States District Judge for the Eastern District of New York, denied defendant Christopher Finazzo's motion in limine to preclude the government from introducing an allegedly privileged e-mail that Finazzo's personal attorney sent to Finazzo's work e-mail account at the clothing retailer Aéropostale, Inc. ("Aéropostale"), his former employer.1 In the e-mail, Finazzo's attorney attached a list of Finazzo's assets that the attorney prepared for the purpose of creating a will.2 Finazzo was asked to review the values listed in the attachment, and the lawyer would draft a revised will based upon information received from Finazzo.3 The government sought to use the e-mail in support of its case against Finazzo for, among other things, mail fraud, wire fraud, and conspiracy.4 It contended that the e-mail was not privileged, because (i) Aéropostale's policies regarding use of its e-mail accounts provided that (a) the e-mail system should generally be used for Company business only; (b) employees have no expectation of privacy in the use of the Company's e-mail system; and (c) Aéropostale reserves the right to monitor or review employee e-mails, and (ii) Finazzo was aware of Aéropostale's policy.5

Finazzo argued that the e-mail was privileged, that Aéropostale's policy regarding its corporate e-mail accounts did not defeat Finazzo's reasonable expectation of privacy, and that Finazzo did not ask his attorney to send the privileged e-mail to his Aéropostale account.6 The Court disagreed, finding that Finazzo had no reasonable expectation of privacy or confidentiality in any communication made through his Aéropostale e-mail account because of the way in which Aéropostale drafted and implemented its computer, e-mail, and Internet usage policy, which was explained in Aéropostale's Employee Handbook that Finazzo acknowledged reading.7

We have written previously about whether the attorney-client privilege protects an employee's personal documents and e-mails stored on a company computer or sent through a company's network.8 Courts generally have found that documents or e-mails created on or sent through a company computer may be confidential and/or privileged if the employee possesses a subjective expectation of confidentiality in those documents that a court finds objectively reasonable.9 A four-factor test (or some derivative thereof) is used to make this determination:

  1. Is there a company policy banning personal use of company e-mail?
  2. Does the company monitor the use of its e-mail?
  3. Does the company have access to all e-mails? and
  4. Did the company notify the employee about these policies?10

This is the test that the Finazzo court used as well.11

So, in light of a fair number of decisions on this subject, what makes this decision important is the fact that Finazzo's attorney, not Finazzo himself—who was not bound by Aéropostale's e-mail policy—sent the e-mail that the Court deemed non-privileged. Although many Courts have examined whether an employee who has sent and exchanged privileged e-mails with his or her lawyer may rely upon an expectation of privacy in light of an employer policy that restricts the personal use of the company's e-mail system,12 we are unaware of any Court which has previously held that the attorney-client privilege is waived by an employee's mere receipt of a privileged e-mail from his or her lawyer.

Generally, an attorney cannot unilaterally waive the privilege for his or her client.13 However, here, the Court found that Finazzo's having admitted he previously corresponded with his attorney via his Aéropostale e-mail account and having never told his attorney not to send privileged information to his Aéropostale e-mail account were important considerations in determining that Finazzo did not ensure and preserve the confidentiality of communications with his attorney14 as required to prevent a waiver.15 This was despite the fact that Finazzo asserted that he never asked or authorized his attorney to send any confidential, sensitive, or privileged materials to his Aéropostale e-mail account.16 Finazzo also asserted that, immediately upon receiving the e-mail, he forwarded it to his personal e-mail account, deleted the e-mail from his inbox, and instructed his attorney only to send confidential information to his personal e-mail address.17 The court was unpersuaded by these arguments as well because, by forwarding the e-mail to his personal account, he sent it back through Aéropostale's e-mail servers, providing Aéropostale another opportunity to see the e-mail.18

Although not mentioned in the opinion, the decision is consistent with the American Bar Association's Formal Opinion 11-459 (the "ABA Opinion"), which states that lawyers have a duty to warn their clients not to use a workplace computer, network, or device to communicate with their personal lawyer. The ABA makes clear that, whenever a lawyer communicates with a client via e-mail, he/she must consider the risks associated with a third party gaining access to those communications, caution the client about this risk, and instruct the client on how to minimize the risk. The attorney in the Finazzo case clearly did not comply with the ABA Opinion. You can obtain more information on the ABA Opinion in our article entitled Ethical Electronics: New Guidance on Protecting the Confidentiality of Attorney-Client E-mails.19

It is clear from the Finazzo opinion that whether an e-mail is sent by an employee or his/her lawyer to the employee's work e-mail account, there is a risk that such an e-mail will be considered non-privileged and discoverable in a subsequent litigation.

Footnotes

1. United States v. Finazzo, No. 10-cr-457, 2013 U.S. Dist. LEXIS 22479 (E.D.N.Y. Feb. 19, 2013).

2. Id. at *3.

3. Id. at *3-4.

4. Finazzo was convicted of 14 counts of mail fraud and one count each of conspiracy and wire fraud on April 25, 2013.

5. Id. at *10-14.

6. Id., at *21-22.

7. Id. at *33-34.

8. J. Poluka and M. Gitlitz Courtney, Whose E-mail Is It Anyway, For the Defense (June 2007), reprinted in Privacy & Data Security Law Journal, vol. 2, no. 9, at 775 (Aug. 2007); J. Poluka and M. Gitlitz Courtney, Whose E-mail Is It Anyway...It Depends, For the Defense (February 2010), reprinted in Mondaq (March 2010).

9. In re the Reserve Fund Secs. & Deriv. Litig., 275 F.R.D. 154, 160 (S.D.N.Y. 2011) (employee did not have a reasonable expectation of privacy in e-mails he sent or received over the company's system, because the company banned personal use of its e-mail system, the company reserved its right to access employee e-mail, the company warned employees that e-mail sent over the company's system might be subject to disclosure to regulators and the courts, and the employee was aware of the e-mail policy); see also Stengart v. Loving Care Agency, Inc., 201 N.J. 300 (2010) (Stengart, who communicated with her lawyer via a personal password-protected Yahoo! e-mail account utilizing a company laptop, did not waive the attorney-client privilege, notwithstanding the company's policy on electronic communications which provided that e-mails, Internet communications, and computer files are "the Company's business records" and that the company could review and access "all matters on the Company's media systems at any time."); Alamar Ranch, LLC v. County of Boise, No. CV-09-004, 2009 U.S. Dist. LEXIS 101866 at *11 (D. Idaho Nov. 2, 2009) ("It is unreasonable for any employee in this technological age...to believe that her e-mails, sent directly from her company's e-mail address over its computers, would not be stored by the company and made available for retrieval."); Sims v. Lakeside Sch., No. C06-1412RSM, 2007 U.S. Dist. LEXIS 69568 at *2-3 (W.D. Wash. Sept. 20, 2007) (where the defendant advised all employees that they did not have a reasonable expectation of privacy in their company laptops, plaintiff's e-mails sent on the employer's e-mail account were not privileged; however, web-based e-mails sent by plaintiff to his counsel from the same laptop were protected by the attorney-client privilege); Kaufman v. SunGard Inv. System, No. 05-cv-1236, 2006 U.S. Dist. LEXIS 28149 (D.N.J. May 10, 2006) (holding that employee had waived the attorney-client privilege by communicating with her attorney over a work e-mail system, where the company policy clearly notified employees that e-mails were "subject to monitoring, search or interception at any time...."); In re Asia Global Crossing, Ltd., 322 B.R. 247, 257 (S.D.N.Y. 2005) (use of a company's e-mail system by an employee to send personal e-mails to the employee's counsel did not waive the attorney-client privilege).

10. Id.

11. United States v. Finazzo, 2013 U.S. Dist. LEXIS 22479, at *22.

12. See e.g., Goldstein v. Colborne Acquisition Co., 873 F. Supp. 2d 932 (N.D. Ill. 2012); In re the Reserve Fund Secs. & Deriv. Litig., 275 F.R.D. 154; Aventa Learning, Inc. v. K12, Inc., 830 F. Supp. 2d 1083 (W.D. Wash 2011); Hanson v. First National Bank, No. 5:10-0906, 2011 U.S. Dist. LEXIS 125935 (S.D.W.V. Oct. 31, 2011); Kaufman, 2006 U.S. Dist. LEXIS 28149; Long v. Marubeni Am. Corp., No. 05-cv-639, 2006 U.S. Dist. LEXIS 76594 (S.D.N.Y. Oct. 19, 2006); In re Asia Global Crossing, Ltd., 322 B.R. 247.

13. Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 556 (2d Cir. 1967); Schnall v. Schnall, 550 F. Supp. 650, 653 (S.D.N.Y. 1982).

14. United States v. Finazzo, 2013 U.S. Dist. LEXIS 22479, at *35.

15. Id. at *17, *21 (citing U.S. v. Mejia, 655 F.3d 126, 134 (2d Cir. 2011) (party asserting the attorney-client privilege must demonstrate that the communication "was intended to be, and in fact was kept confidential" by making a showing that they took "some affirmative action to preserve confidentiality."); U.S. v. DeFonte, 441 F.3d 92, 94-95 (2d Cir. 2006) (it was appropriate for district court to consider whether otherwise privileged communications were treated in "such a careless manner as to negate [any] intent to keep them confidential"); In re Horowitz, 482 F. 2d 72, 81 (2d Cir. 1973); Diversified Group, Inc. v. Daugerdas, 304 F. Supp. 2d 507, 515 (S.D.N.Y. 2003) ("It is axiomatic that voluntary disclosure of confidential communications constitutes a waiver of the attorney-client privilege.") (internal citations omitted)).

16. Id. at *4.

17. Id.

18. Id. at *39.

19. J. Poluka and M. Gitlitz Courtney, Ethical Electronics: New Guidance on Protecting the Confidentiality of Attorney-Client E-mails, For the Defense (November 2011)

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Joseph Poluka
Similar Articles
Relevancy Powered by MondaqAI
Frankfurt Kurnit Klein & Selz
Smith Haughey Rice & Roegge
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Frankfurt Kurnit Klein & Selz
Smith Haughey Rice & Roegge
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions