June 6, 2011

All's Fair in Love and E-Discovery: Employer Email Policies Trump Marital Privilege

Holland & Knight Alert
Benjamin R. Wilson

Nearly a century ago, E.M. Forster posed the question: “How can I tell what I think till I see what I say?”1 This question continues to resonate today, particularly when considering our use of electronic communications. Whether via email, text message, Facebook or Twitter, our messages too often devolve into a stream of consciousness. This has lead to some remarkable consequences – ranging from the embarrassing to the tragic.

Electronic communications are an integral part of our personal and professional lives. It is little wonder why – they provide virtually unfettered access to persons and a rapid, if not instantaneous, platform with which to communicate. These benefits, however, are not without a cost. Indeed, the speed of communicating in this way can strip contemplation away from even the most thoughtful writer. Fostered by the detachment that simply typing on a computer or cellular phone provides, our communications too often become unfiltered missives, without much thought to the potential repercussions.

With the overlay of electronic discovery virtually etching our communications into the proverbial stone, and an evolving jurisprudence eroding the protection of certain communications from disclosure, companies and employees should periodically take stock of their practices relating to emails and other forms of electronic communication.

Consideration is once again warranted, particularly in light of a recent decision by a federal court in Louisiana related to the Deepwater Horizon disaster. In the opinion, the Court ordered the disclosure of a husband’s personal emails to his wife from his work account, in spite of the long-standing and recognized marital privilege, which generally precludes the disclosure of confidential communications between a married couple. In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico on April 20, 2010, No. 10-md-02179-CJB-SS (E.D. La. Mar. 28, 2011).2

Factual Background

On April 20, 2010, the Deepwater Horizon oil rig leased by BP PLC experienced an explosion causing the rig to sink. As a result, more than four million barrels of oil were spewed into the Gulf of Mexico making it the world’s largest accidental maritime oil spill. In August 2010, a United States judicial panel consolidated approximately 300 actions in multidistrict litigation before U.S. District Judge Carl Barbier in New Orleans. Claims include wrongful death and economic and environment damages.

The issue resolved by this decision involved nearly 100 documents containing emails exchanged between two BP employees: Brian Morel, a drilling engineer at BP, and his wife, a production engineer. Because these emails were sent from Mr. Morel’s and his wife’s respective email accounts, BP produced them in response to discovery demands made by the plaintiffs. Mr. Morel, who advised through his counsel that he would assert his Fifth Amendment right against self-incrimination at his scheduled deposition, sought the return or destruction of these emails asserting the marital privilege.

BP’s Policies Regarding Employee Email Communications

Prior to the litigation, BP implemented various policies placing employees on notice that emails sent over the BP system were: (a) the property of BP; (b) not private; (c) subject to monitoring or auditing at any time without notice; and (d) subject to potential compulsory disclosure.

For example, an initial pop-up screen appeared on BP computers, which provided: “[w]ithin the bounds of law, electronic transmissions through internal and external networks may be monitored to ensure compliance with internal policies and legitimate business purposes.”

In addition, BP’s Global Email Policy stated: “[a]ll electronic files kept on the email system ... are subject to potential compulsory disclosure by subpoena ... . And[w]hilst respecting privacy principles, BP specifically reserves the right, within the bounds of law, to access electronic communications ... .”

Furthermore, BP’s Code of Conduct Policy provided that all “personal data, information or electronic communications created or stored on company computers or other electronic media such as hand-held devices are not private.” BP also reserved the right to monitor and/or record electronic communications without providing notice to the employee.

Arguments Advanced by the Parties

Plaintiffs seeking the disclosure argued that BP’s policies and notifications undermined any reasonable expectation of privacy and constituted Mr. Morel’s waiver of any marital privilege.

Counsel for Mr. Morel responded that the presence of BP’s policies simply was not enough; the question was whether or not these policies were ever implemented. Furthermore, counsel argued, Mr. Morel had an otherwise reasonable expectation of privacy, relying on the four factors set forth in In re Asia Global Crossing, Ltd., 322 B.R. 247, 257 (Bankr. S.D.N.Y. 2005). Namely, counsel identified that: (1) BP permitted the personal use of company email; (2) it did not indiscriminately or randomly monitor its employees’ emails; (3) no third party other than BP had a right to access Mr. Morel’s email account; and (4) BP’s notification statements were insufficient to overcome the presumption of confidentiality.

Judge Shushan’s Decision

Relying on case law from the Seventh Circuit and various federal district courts, including the Southern District of New York,3 U.S. Magistrate Judge Susan Shushan concluded Mr. Morel’s emails were discoverable. The Court concluded that by virtue of BP’s policy announcing that employee emails could be monitored, accessed and subject to disclosure by subpoena, Mr. Morel had no objective, reasonable expectation of privacy in his communications with his wife.

Review of Company Policies Regarding Email Communications

This case serves as yet another painful reminder of the potential disclosure of electronic communications – even those intended to be confidential. Companies are well-advised to consider their policies and notifications regarding email communications to ensure that current procedures adequately place employees on notice. This places companies in a better position to navigate potential disclosure disputes. It would be similarly beneficial for companies to remind their employees of their individual policies. At the very least, this knowledge may prevent embarrassing or intimate communications from being disclosed in the future.

1 E.M. Forster, Aspects of the Novel (1927).

2 This decision is publicly available on Public Access to Court Electronic Records (PACER).

3 The authorities cited by the court were: Muick v. Glenayre Electronics, 280 F.3d 741 (7th Cir. 2002), U.S. v. Etkin, No. 07-913, 2008 WL 482281 (S.D.N.Y. Feb. 20, 2008); and Sims v. Lakeside, No. 06-1412, 2007 WL 2745367 (W.D. Wash. Sept. 20, 2007).

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