11 March 2013

Can A Company Maintain Attorney Client Privilege After Its Executives and Attorneys Communicate With A Consultant Through Another Company's Email System?

Magistrate Judge Paul S. Grewal of the Northern District of California says yes. Here is what Judge Grewal writes:

Bill Campbell . . . works for [] Google[], but he is no mere employee, and perhaps not even that. He earns at best a nominal salary, often without any formal agreement or even understanding. And yet Campbell occupies an elite niche in the technology industry that, with apologies to Robert Redford, is best described as an "executive whisperer." Either as consultant or part-time employee, Cambell has advised Google's senior-most management even as he did the same for [Apple] and others, all while serving as Chairman of the Board of [Intuit]. Campbell's unique status lies at the heart of the motion to compel now before the court. Citing their disclosure to Campbell [through Intuit's corporate email network], Plaintiffs [] seek production of emails that Google either redacted or failed to produce on the grounds that the documents were privileged. Having considered the parties' papers, supplemental documents, and oral arguments, the court DENIES Plaintiffs' motion to compel but without prejudice to in camera review of certain documents as discussed below. 
. . .  
Although the court finds that the Asia Global [In re Asia Global Crossing, Ltd., 322 B.R. 247 (S.D.N.Y. 2005) (propounding four factors that it found most relevant to the question of confidentiality of emails sent over an employer's email system in the attorney-client privilege context)] factors are evenly split, the court finds that the importance of the attorney-client privilege as well as the lack of evidence that Intuit in fact monitored Campbell's emails supports the preservation of the privilege in this case. The fact that Campbell sent and received messages from his Intuit email address does not destroy the confidentiality necessary to maintain the privilege.

Read all of Judge Grewal's opinion in In re High-Tech Employee Antitrust Litigation, No. 11-CV-2509-LHK-PSG (N.D. Cal. Feb. 28, 2013), by clicking here.

07 March 2013

Mastering Data Breach, ID Theft & Privacy Laws

My handout materials for this morning's New Jersey Institute for Continuing Legal Education's Mastering Data Breach, ID Theft & Privacy Laws seminar can be found here. It was an enjoyable panel of which to be part. Thanks to Robert Chesler for organizing and moderating, and to Cynthia Borrelli, Joshua Gold, Andrew Obuchowski, and Paul Paray for co-presenting.