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Automatic Copying of Emails Doesn't Kill Privilege, Court Finds

A man who used a Web-based e-mail service to communicate with his lawyer did not forfeit attorney-client privilege in those messages just because they were automatically copied to his company-owned laptop computer when he viewed them, a Massachusetts court has ruled.

The average person could not be expected to know that e-mails on and similar Web-based services are temporarily stored as "screen shots" on the hard drive of any computer used to view them, Justice Ralph D. Gants said.

The client, David Evans, used a laptop computer issued to him by his then-employer, National Economic Research Associates Inc., to send and receive e-mail from his personal Yahoo account.

The messages were stored on Yahoo's system, but when Evans viewed them using his NERA-issued laptop, each one was automatically captured as a "screen shot" and copied to the laptop's hard drive. Some of the messages were communications with his attorney concerning his decision to leave NERA and work for a competing consulting firm, LECG Corp.

As explained in Judge Gants' ruling, Evans returned the laptop to NERA when he left. The company had a computer expert search the hard drive, and the expert was able to retrieve copies of Evans' Yahoo e-mails, including those to and from the attorney.

NERA sued Evans and LECG in the Massachusetts Superior Court in a dispute involving certain stock options Evans held with NERA. The plaintiff asked the court to allow it to use the e-mails between Evans and his attorney as evidence.

NERA argued that privilege was waived because the stored e-mails could be accessed by third parties, albeit only those with sufficient computer expertise.

Evans countered that the messages were protected by attorney-client privilege.

Not a Waiver of Privilege

Judge Gants sided with Evans, saying he did not waive privilege just because the e-mails were automatically copied to the hard drive of the NERA laptop.

NERA argued that it warned employees their Internet activity on company computers could be monitored. Evans should have known his Yahoo e-mails were being copied to the laptop's hard drive and that they could be recovered and read.

The judge disagreed, first noting that NERA did not tell employees that the content of their e-mails would be monitored. The company merely said it could track the Web sites they visited.

Judge Gants then rejected NERA's argument that a reasonable person in Evans' position would have been aware of the screen-shot copying.

The judge noted the American Bar Association issued an ethics opinion in March 1999 that says attorneys have a "reasonable expectation of privacy" when they use e-mail services such as Yahoo to communicate with clients. The ethics opinion makes no mention of screen-shot copies.

Judge Gants also pointed out that the stored e-mails are not accessible to the average computer user. It takes someone with specialized expertise to retrieve them, he said.

If NERA's position were adopted, the judge concluded, it would be "extremely difficult" for employees who are traveling or away from the office to communicate via e-mail with their attorneys.

National Economic Research Associates Inc. et al. v. Evans et al., No. 04-2618-BLS2, 2006 WL 2440008 (Mass. Super. Ct. Aug. 3, 2006).
Computer & Internet Litigation Reporter
Volume 24, Issue 07

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