The Journal of The DuPage County Bar Association

Back Issues > Vol. 24 (2011-12)

Electronic Privileged Communications Obtained By Third Parties: The Division Between The Courts And The ABA On The Duty To Notify
By James S. Barber and Karen E. Bettcher

During the course of representing a client, an attorney or client comes into possession of electronic communications between another party and that party’s attorney.  Can these communications be reviewed?  Can they be used in litigation?  Should the attorney notify the other party or the Court that he or his client possess these communications?  This article explores recent cases that consider these questions and concludes that the court rulings have been contradicted by the formal opinions of the American Bar Association’s Committee on Ethics and Professional Responsibility when answering these questions.   

E-mails Intentionally Sent Without Permission. The case of Chamberlain Group, Inc. v. Lear Corporation involved litigation between two companies over Lear’s alleged infringement of Chamberlain’s patent for a universal garage door opener.[1]  Lear asserted that it legally designed around the Chamberlain patents.[2]  During the patent litigation, one of the plaintiffs, JCI, received an unsolicited e-mail from an alleged former Lear employee who claimed to have worked on the design of the garage door opener.[3]  In the summer of 2009, the former employee sent to JCI an e-mail with Lear documents attached.[4]  The documents were marked “[p]rivileged/[c]onfidential information prepared under direction of counsel.”[5]  JCI’s in-house attorney and outside counsel testified that they did not initially look at the documents.  But, almost a year later outside counsel viewed the attachment and then turned the documents over to Lear.[6]  Ultimately, Federal Magistrate Judge Denlow granted, in part, Lear’s motion for Sanctions against JCI citing the “ABA Model Rule of Professional Conduct, 4.4(b), which states “[a] lawyer who receives a document relating to representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.”[7]  JCI argued that the former employee did not inadvertently send the document and, therefore, RPC 4.4(b) did not apply.[8]  However, the court declined to make such a distinction.[9] The court stated, “Many courts, this Court included, failed to see why this same duty to disclose should cease where confidential documents are sent intentionally and without permission. [citation omitted].  If anything, the duty to disclose should be stricter when a party obtains the documents outside legitimate discovery procedures.”[10]

Similarly, in Webb v. CBS Broadcasting, Inc., the plaintiff’s attorney obtained documents knowing that the way he obtained them was “at best” questionable and that he knew or suspected that retaining those documents was a violation of a protective order entered in a state court case.[11]  While trying to get a court order that the documents were discoverable in the case at issue, the attorney concealed the documents from other parties and the Court.[12]  The attorney did not admit to holding the documents and did not list the documents on a privilege log.[13]  There were also several incidences of failing to disclose information in answers to interrogatories and in depositions.[14]  Citing Chamberland, Federal Magistrate Judge Brown applied the Illinois Rules of Professional Conduct 4.4(b), which he noted is similar to ABA Model Rule of Professional Conduct, 4.4(b), to circumstances where the confidential and privileged information was intentionally sent without permission.[15]  The court sanctioned and fined the attorney for failure to disclose information confidentially provided to him by another party’s attorney.[16] 

Was It An Unintentional Disclosure And Privileged? In Stengart v. Loving Care Agency, Inc., the Supreme Court of New Jersey was confronted with this issue in an employment discrimination case.[17]  Plaintiff was the executive director of a nursing home, Loving Care, and the company provided the plaintiff with a laptop computer to conduct company business.[18]  The plaintiff could send e-mails using a company e-mail address, access the Internet and visit websites through Loving Care’s computer server.[19]  Unbeknownst to the plaintiff, company software automatically made a copy of each webpage the plaintiff viewed and saved it on the computer’s hard drive in a “cache” folder of temporary internet files.[20]

The plaintiff used her company laptop to access a personal, password-protected e-mail account on Yahoo’s website where she communicated with her attorney regarding her work situation.[21]  She never, however, saved her Yahoo I.D. or password on the company laptop.[22]  When the plaintiff left the company, she filed a lawsuit alleging constructive discharge because of a hostile work environment, retaliation and harassment based on gender, religion and a national origin claim under the New Jersey Law Against Discrimination.[23]

The company hired a forensic expert to create an image of the laptop’s hard drive to preserve electronic evidence.[24]  The expert found the communications between Stengart and the lawyer.[25]  The company’s attorneys reviewed the e-mails and used the information obtained in the course of discovery.[26]  The employee’s lawyer then demanded the identification and return of all the communications.[27]  The employer’s counsel disclosed the documents that had been obtained, but took the position that the company had a right to review them.[28]  The employee sought relief from the court.[29] 

E-mail Policy Vague.  The company had a written policy on electronic communications, which stated that e-mail messages and other Internet communications were considered part of the company’s business and not to be considered private or personal to any individual employee.[30]  The trial court, therefore, ruled that the employee had waived her attorney-client privilege by sending the e-mails on the company’s computer.[31]  The Appellate Division reversed and found that the company’s counsel violated a New Jersey Rule of Practice, RPC 4.4(b) by failing to alert the employee’s attorney that it possessed the e-mails before reading them.[32]  

On review before the New Jersey Supreme Court, the company argued that employees have no expectation of privacy in their use of company computers because of the company’s policy statement.[33]  Also, accessing e-mails on a personal account through the company’s computer and server precluded the attorney-client privilege from attaching or was a waiver by the employee voluntarily submitting her e-mails to company scrutiny.[34]  Finally, because the e-mails were left behind on the employee’s company computer, the company argued that the e-mails were not “inadvertently sent” and the New Jersey Rule of Practice did not apply.[35] 

The New Jersey Supreme Court disagreed with the company and focused on two principle issues:  (1) the adequacy of the notice provided by the company’s e-mail policy, and (2) the important public policy concerns raised by the attorney-client privilege.[36]  The court found several issues with the language in the company policy.[37]  For example, the policy’s language was too general and was not clear on whether the policy applied to use of “personal, password-protected, web-based e-mail accounts via company equipment.”[38]  The court also found that the policy did not define the term “media systems and services.”[39]  The policy did not address personal accounts and, therefore, there was not express notice that messages sent or received on a personal, web-based e-mail account are subject to monitoring if the company equipment is used to access the account.[40]  The policy also did not warn that the content of an employee’s e-mails were stored on a hard drive, which could be forensically retrieved and read.[41]  The court found contradiction between statements that e-mails are “not to be considered private or personal to any individual employee” and the very next statement that “occasional personal use [of e-mail] is permitted,” which the court found “creates ambiguity.”[42]  Further, the employee’s attorney’s e-mails also carried the caveat that they were privileged communications.[43]  As a result, the court concluded the plaintiff had an objective, reasonable expectation of privacy as well.[44] 

Response of the ABA’s Committee on Ethics and Professional Responsibility. Following the decision in Stengart, the American Bar Association’s Committee on Ethics and Professional Responsibility issued a formal opinion regarding the duty owed when a lawyer receives copies of a third party’s e-mail communications with counsel.[45]  Directly contradicting the Stengart holding, the opinion states that “neither Rule 4.4(b) nor any other Rule requires the employer’s lawyer to notify opposing counsel of the receipt of the communications.”[46]  The opinion reasons that Rule 4.4(b) only applies to documents that are “inadvertently sent.”  A document is not inadvertently sent when it is retrieved from a public or private place where it was stored or left by a third person.[47]

But, the opinion recognizes that “court decisions, civil procedure rules, or other law may impose such a notification duty, which a lawyer may then be subject to discipline for violating.”[48]  Accordingly, if the law is unclear, the opinion advises that Rule 1.6(b)(6) allows the employer’s lawyer to disclose that the employer has retrieved the communications.[49]  If, however, there is no law that can “reasonably be read as establishing a notification obligation . . . the decision whether to give notice must be made by the employer-client” with the employer’s lawyer explaining the consequences of disclosure and available alternatives.[50] 

Instead of imposing a duty on the employer’s lawyer to notify opposing counsel of receipt of such communications, the ABA’s Committee on Ethics and Professional Responsibility issued formal opinion 11-459, which provides that “[a] lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access.”  In accordance with this opinion, a lawyer representing an employee must provide this warning when the lawyer knows or reasonably should know that the client is likely to use a business device or system to send or receive substantive client-lawyer communications and there is a significant risk that the communications will be read by the employer or another third party.[51]  

Conclusion. The courts and the ABA’s Committee on Ethics and Professional Responsibility are divided in answering the duty of a lawyer to notify another party and the court when the attorney comes into possession of electronic communications between the other party and his attorney.  In light of this division, when presented with such a situation, it is necessary to first determine if there is a law imposing such a notification duty.  If not, then the attorney must inform his or her client of the consequences of notification and available alternative so that the client can make an informed decision.  Finally, attorneys representing employees should consider routinely warning their clients about the risk of sending or receiving privileged electronic communication, especially when using employers’ electronic devices.

[1] Chamberlain Group, Inc. v. Lear Corp., 270 F.R.D. 392, 393 (N.D. Ill. 2010).

[2] Id.

[3] Id. at 394.

[4] Id.

[5] Id.

[6] Id.

[7] Id. at 398 (emphasis in original).

[8] Id.

[9] Id.

[10] Id.

[11] Webb v. CBS Broad., Inc., No. 08 C 6241, 2011 WL 1743338, *12 (N.D. Ill. May 6, 2011).

[12] Id.

[13] Id. at *4-7, 12. 

[14] Id. at **5, 7. 

[15] Id. at *12.

[16] Id. at **16-18.

[17] Stengart v. Loving Care Agency, Inc., 201 N.J. 300, 307, 990 A.2d 650, 655 (2010).

[18] Id.

[19] Id.

[20] Id. at 656.

[21] Id.

[22] Id.

[23] Id. at 655-56.

[24] Id. at 655.

[25] Id. at 656.

[26] Id. at 655.

[27] Id.

[28] Id.

[29] Id.

[30] Id. at 657.

[31] Id.

[32] Id. at 658.

[33] Id.

[34] Id.

[35] Id.

[36] Id. at 659.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43]Id. at 659-60.

[44] See id. at 659-663.

[45] ABA Comm. On Ethics and Prof’l Responsibility, Formal Op. 11-460 (2011).

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Id.

[51] ABA, Comm. On Ethics and Prof’l Responsibility, Formal Op. 11-459 (2011) (referencing Rules 1.1 and 1.6). 

James S. Barber is a partner with Clausen Miller P.C. and head of its Employment Practice Group.  He counsels and represents clients in areas of employment policy, contracts, labor standards and employment litigation.  Mr. Barber has extensive experience in injunction actions, specifically in disputes related to enforcement of covenants not to compete, confidentiality agreements and trade secrets.  He is an accomplished author and lecturer.  For eight consecutive years, Mr. Barber has been recognized as a Leading Lawyer and Illinois Super Lawyer.

Karen E. Bettcher is an associate attorney at Clausen Miller P.C. specializing in litigation.  She has represented clients in matters involving liability claims and property rights disputes arising from computer usage and data storage.   Ms. Bettcher received her Juris Doctor from The John Marshall Law School where she was the managing editor of the Review of Intellectual Property Law.  She is a former federal law clerk and did her undergraduate work at Miami of Ohio.
 
 
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