Monday, June 27, 2011
An interesting recent discovery dispute Order reflects the fascinating balance between the spousal privilege and one’s expectation of privacy in the use of his or her computer email at work. A Magistrate Judge in In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, On April 20, 2010 [United States District Court for the Eastern District of Louisiana, (MDL No. 2179 – Section J), available at: http://www.theemployerhandbook.com/oil.pdf]determined that a husband had no reasonable expectation of privacy in emails sent to his wife from his work computer. The husband’s assertion of the marital privilege was denied, and he was unsuccessful in his efforts to block the release of those emails.
As we all know, the Deepwater Horizon oil drilling rig suffered an explosion on April 20, 2010. As a result, 11 workers died and the world saw the largest accidental oil spill in history. Many parties instituted litigation against the manufacturer of the rig, the owners of the rig, and numerous other parties. This Order concerning the marital privilege is one of many issued thus far in the case.
Brian Morel was a drilling engineer employed by BP (British Petroleum) on the Macondo Well – the site of the drilling on the date of the explosion. He married a BP production engineer in 2008. His wife did not have any professional responsibilities on the Macondo Well. He sent her many email messages through their BP work accounts. The Plaintiff Steering Committee (PSC), the United States, the States of Louisiana and Alabama, Halliburton, and other litigants scheduled a deposition of Mr. Morel. His counsel informed the parties that he would invoke his Fifth Amendment privilege in response to any questions they might ask. BP had already turned over email sent by Mr. Morel. He objected to the release of 93 of these emails based upon an asserted marital privilege. In this Order, Magistrate Judge Shushan determined that Mr. Morel had no expectation of privacy in the emails sent to his wife through their BP account and the marital privilege did not apply. This is instructive as presumably we would have the same result if a party wishes to use that privilege at trial and there is an evidentiary objection.
The emails were sent from Mr. Morel’s email account with BP to his wife’s email account with BP. His attorney argued that there was indeed an expectation of privacy in the emails because there was no evidence that BP monitored its employees’ emails and the parties seeking the emails had not met their burden to overcome the presumption of privilege.
BP had a “pop-up screen” that appeared when their employees used their work computers and it stated the following: “within the bounds of law, electronic transmissions through internal and external networks may be monitored to ensure compliance with internal policies and legitimate business purposes.” BP also informed employees that personal data and communications were not private and that email was “subject to potential compulsory disclosure by subpoena.” Despite these warnings, Mr. Morel’s counsel argued that BP had no prohibition against employees using the email network for personal use, and no policy of actual monitoring had ever been shown. “Mr. Morel urges that the determination is not made on the basis of the written BP policies but on how those policies were implemented.”
Judge Shushan analyzed a 5th Circuit case, U.S. v. Slanina, 283 F. 3d 670 (5th Cir. 2002) in which the Court found an expectation of privacy despite an employee’s use of his work computer. In her Order, Judge Shushan distinguished Slanina because in that case, there was also no evidence that there was any sort of computer policy in place and there was no evidence that employees were informed of a dissemination policy or monitoring. She also considered a case cited by Mr. Morel, In re: Asia Global Crossing, Ltd., a bankruptcy case from New York (322 BR 247 (Bankr. S.D.N.Y. 2005)) that set forth the following four factors for determining an employee’s expectation of privacy:
- Does the corporation maintain a policy banning personal or other objectionable use;
- Does the company monitor the use of the employee’s computer or email;
- Do third parties have a right of access to the computer or emails; and
- Did the corporation notify the employee, or was the employee aware, of the use and monitoring policies.
Judge Shushan decided that other cases did not require a finding that a company banned personal use of computers and email and that there was no specific evidence in this case that monitoring did not occur within BP. She decided to follow the reasoning of these other cases and specifically found the following:
It is not objectively reasonable for an employee to have an expectation of privacy where the employers’ policies clearly demonstrate that: 1) the employee’s electronic communications are not private; 2) they may be monitored and accessed by the employer; and 3) they are subject to production by a subpoena.
It is an interesting Order and brings to mind some of the similar cases of employee use of computers to contact and communicate with their attorneys. For an interesting recent case on that front, see Holmes v. Petrovich Development Co., LLC, a California Appellate case, available at: http://scholar.google.com/scholar_case?case=9181011446702902609&hl=en&as_sdt=2&as_vis=1&oi=scholarr.