Opinion
Civil No. 04-565 LFG/WDS.
October 25, 2005
ORDER DENYING PLAINTIFF'S MOTION IN LIMINE REGARDING E-MAILS
THIS MATTER is before the Court on Plaintiff Michael Martinez White's ("White") Motion in Limine [Doc. 73]. White seeks to have the Court exclude various e-mail messages by and between White and some of his witnesses, Thomas Jimenez, Kevin Henson, Teague Britnell and others. He also seeks to exclude testimony relating to the contents of those e-mail messages.
White states that during the course of his deposition, he was asked to authenticate various e-mails, either written by him to others or by others to him. Some of the e-mails are addressed to White's attorney, Mr. Justin Pennington.
While White contends that some of the e-mails were authored by him, the sample e-mails submitted for the Court's inspection appear to have all been authored by "KevHenson" except for two from "Rockys829." Some are addressed to Mr. Pennington and all e-mails submitted were copied to others. For example, the e-mail of November 23, 2003 was copied to Rockys829, abritnell113, and tomj63.
So, too, with the e-mail dated December 2, 2003 from Henson to attorney Pennington as well as wamaggiore and Rockys829. Rockys829 is also copied on Henson's e-mail of December 2, 2003.
Insufficient information is submitted in this motion to allow the Court to make a reasoned determination as to whether the motion should be granted. For example, all but two of the attachments are communications from Henson; none appear to be from White. The attorney-client privilege is personal and, thus, as to communications authored by Henson, Henson is the owner of the privilege rather than White. In re Grand Jury Subpoena, 144 F.ed 653 (10th Cir. 1998). Henson has not sought to intervene in this litigation to assert his privilege, nor has Mr. Pennington sought to assert it on behalf of Henson.
Additionally, there is insufficient information from which the Court can determine the identity of rockys829. For a communication to be protected by attorney-client privilege, confidentiality is essential. Discovery Proceedings in Federal Court, 3d ed. § 28.08 (Shepard's Ed. Staff eds., 3d ed. 1995). A privilege can be destroyed if a third party is present when a communication is made or if the person entitled to assert the privilege voluntarily discloses the communication to a third party. If a privilege was applicable at all, it may have been waived by disclosure to third parties.
Additionally, it is unclear if these communications were made by way of office computers, as opposed to personal home computers. Depending on the circumstances, a worker may have a reasonable expectation of privacy in his work space, or portions thereof. O'Connor v. Ortega, 480 U.S. 709, 107 S. Ct. 1492 (1987); United States v. Higgins, 282 F.3d 1261 (10th Cir. 2002). However, the expectation of privacy in the work place "is different from, and indeed less than, a similar expectation in an individual's home." United States v. Leary, 846 F.2d 592, 597 n. 6 (10th Cir. 1988), quoting from New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636 (1987).
The operational realities of the workplace, however, may make some employees' expectations of privacy unreasonable when an intrusion is by a supervisor rather than a law enforcement official. Public employees' expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation. . . . Given the great variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.O'Connor v. Ortega, 480 U.S. at 717, 718.
In determining whether an employee has a reasonable expectation of privacy in his transactions over the Internet, including e-mail, the Court should also consider: (1) the employee's relationship to the item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3) whether the employee took actions to maintain his privacy in the item. United States v. Angevine, 2881 F.3d 1130, 1134 (10th Cir. 2002).
In Angevine, a case involving a university professor whose office computer contained images of child pornography downloaded from the Internet, the Tenth Circuit pointed to the university's computer use policies and found that the school's reservation of the right to randomly audit Internet use and to monitor specific individuals suspected of misusing university computers "prevent its employees from reasonably expecting privacy in data downloaded from the Internet onto University computers." Id., at 1134. In addition:
The University explicitly reserved ownership of not only its computer hardware, but also the data stored within. Professor Angevine does not dispute Oklahoma State University owned the computer and the pornographic data he stored on it. Because the computer was issued to Professor Angevine only for work related purposes, his relationship to the University computer was incident to his employment. Reasonable people in Professor Angevine's employment context would expect University computer policies to constrain their expectations of privacy in the use of University-owned computers.Id., at 1134-35. Consideration of the remaining factors cited above also supported the court's conclusion that the employee had no expectation of privacy in these circumstances. Accord, United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000).
Some courts have held that, even in the absence of a company e-mail policy, no employee has a reasonable expectation of privacy in work e-mail. See, e.g., Smyth v. Pillsbury Co., 914 F. Supp. 97, 101 (E.D. Pa. 1996) ("Once plaintiff communicated the alleged unprofessional comments to a second person (his supervisor) over an e-mail system which was apparently utilized by the entire company, any reasonable expectation of privacy was lost. . . . We find no privacy interests in such communications").
Other courts hold that an employee might have a reasonable expectation of privacy in certain e-mail communications, depending on the circumstances, including perhaps the configuration of the e-mail system. McLaren v. Microsoft Corp., No. 05-97-00824-CV, 1999 WL 339015, at *4 (Tex.Ct.App. May 28, 1999) ("e-mail messages contained on the company computer were not McLaren's personal property, but were merely an inherent part of the office environment . . . [and] any e-mail messages stored in McLaren's personal folders were first transmitted over the network and were at some point accessible by a third party);United States v. Thorn, 375 F.3d 679 (8th Cir. 2004), vacated and remanded on other grounds, ___ U.S. ___, 125 S. Ct. 1065 (2005); United States v. Bailey, 272 F. Supp. 2d 822 (D Neb. 2003); Garrity v. John Hancock Mut. Life Ins. Co., No. CIV.A. 00-12143-RWZ, 2002 WL 974676, at *2 (D. Mass. May 7, 2002);Kelleher v. City of Reading, No. CIV.A.01-386, 2002 WL 1067442, at *7-8 (E.D. Pa. May 29, 2002); Thygeson v. U.S. Bancorp, No. CV-03-467-ST, 2004 WL 2066746, at * 20-21 (D. Or. Sept. 15, 2004).
The e-mails submitted as attachments were made during normal working hours. Thus, there is an inference that they were made at work. If that is the case, White has failed to establish a privilege, as he has not shown that the individual who generated the e-mail reasonably thought that the communication would be confidential. The expectancy of confidentiality is key.
No one by the name "Rocky" appears on a witness list in the present lawsuit nor as a party in the two companion lawsuits identified by White in his motion. If a privilege existed at all, the disclosure of the communication to "Rocky" or to "abritnell" and a "tomj" would constitute a waiver of the privilege.
White seeks to apply the joint defense exception to the general rule that no privilege attaches to communications made in the presence of third parties. There is insufficient information, however, for the Court to determine whether this is a true joint defense privilege.
The joint defense privilege encompasses shared communications to the extent that they concern common issues and are intended to facilitate representation in possible subsequent proceedings. It is essential, however, that the co-defendants exchanged the information in confidence, not for the purpose of allowing unlimited publication and use, but rather for the limited purpose of assisting in their common cause.Discovery Proceedings in Federal Court, supra, at § 2808.
As the Court is unable to determine whether all the individuals who received the communications are parties in cases that have common issues, and, further, as the Court cannot determine if these communications were intended to facilitate joint representation, the Court is unable to conclude that there is a privilege.
IT IS ORDERED that Plaintiff's motion in limine is DENIED, and the Court will deal with these matters if and when they arise during the course of the upcoming trial.