Parties to litigation are used to providing privilege logs (a list of documents not produced in discovery on the grounds that the documents contain privileged information) with such information as author, recipient, date, description of the document and the privilege being asserted. Now that electronic documents are becoming the “norm,” the courts may begin requiring more information about these documents. Once such case is Favors v. Cuomo, a redistricting case in filed in the Eastern District of New York. In this case, the court ordered defendants to supplement their privilege log to include “addressee(s), copyee(s), blind copyee(s), date, time, subject line, file name, file format, and a description of any attachments.” Favors v. Cuomo, 11-CV-5632, 2012 U.S. Dist. LEXIS 113076, *116 (E.D.N.Y. Aug. 10, 2012) (U.S. Mag. J. Roanne L. Mann). The rationale for this ruling was that this type of information is easily and readily accessible given the metadata available for electronic documents. Id. However, the court did add that merely listing the subject line, file name or document title would be insufficient as it would result in “vague, confusing, or conclusory descriptions.” Id. at *117 n.36. Thus, this type of information would have to be revised to provide a sufficient description of the document.
With the incredible rise of social networking websites (an estimated half of Americans use these sites), litigators are beginning in earnest to seek discovery of parties’ social networking accounts and postings (such as Facebook, LinkedIn, MySpace, Twitter). Frequently, statements made or photographs shown on a person’s “wall” or page made be relevant to issues in a lawsuit. For example, in a personal injury action where a plaintiff claims to be disabled or physically restricted because of an accident, a photograph showing the plaintiff engaged in a physical activity after the injury, such as skiing or running, may shed light on the true extent of his or her injuries. Litigators want to obtain access to these social networking sites as part of the discovery process.
The question facing Courts is whether to allow such access and, if so, are there limits on what must be revealed. Senior Judge R. Stanton Wettick, Jr. of the Court of Common Pleas of Allegheny County (which includes Pittsburgh) recently issued an opinion where he extensively discusses the case law surrounding when a litigant is entitled to access an individual’s social networking site and what must be produced if it is. Because Judge Wettick handles most discovery disputes in Allegheny County, this decision is particularly important for practitioners in Pittsburgh and Pennsylvania state courts.
In his opinion, he notes that information from an individual’s social networking site is not protected by any privileges, either because there is no basis for the privilege or it has been waived by sharing the information with others. Despite that, he concludes that the information is not per se discoverable. Rather, the party seeking the discovery must make some threshold showing that there is likely to be relevant information on the social network site before it is entitled to discovery. He concludes that such a test adequately balances the need for relevant discovery with the intrusion of giving access to a great deal of personal information that is unrelated to the issues in the lawsuit.
Here’s a scary decision by a California Appellate Court reported on Wired.com http://www.wired.com/threatlevel/2011/01/email-attorney-client-privilege/. An employee who sues her employer for discrimination, and who communicates with her lawyer using her employer’s e-mail system, waives the attorney client privilege by using the company’s e-mail system to seek or receive legal advice from her lawyer. In other words, if you sue your employer, you may not use that employer’s e-mail server to communicate with your lawyer, or those communications are not privileged. This is an important issue not only to litigants, but to lawyers, who routinely send litigation related e-mails to clients at workplace e-mail addresses. Lawyers must now, perhaps, ask clients a series of questions regarding the process of e-mail communications so that a privileged system of communication can be established. Wired.com quotes the court as holding that “The e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard.” The key to the decision involves the explicit warnings given to plaintiff and her fellow employees about the use of company e-mail. The court’s holding cited the following rationale for its decision to vitiate the privilege: “This is so because Holmes used a computer of defendant company to send the e-mails even though (1) she had been told of the company’s policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail, (2) she had been warned that the company would monitor its computers for compliance with this company policy and thus might “inspect all files and messages . . . at any time,” and (3) she had been explicitly advised that employees using company computers to create or maintain personal information or messages “have no right of privacy with respect to that information or message.” See the Courts Published Opinion: http://www.courtinfo.ca.gov/opinions/documents/C059133.PDF
Whether the California decision will be followed elsewhere, or copied in other state or federal courts remains to be seen. We at PitIPtechblog will continue to monitor this decision and its fallout.
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