As I’ve noted before, it’s far from clear that we have a 4th Amendment expectation of privacy in emails we leave stored on an ISP’s servers. As I’ve also noted, there’s a good argument that unless we encrypt our emails, we “knowingly expose” them to the ISP’s employees, thereby forfeiting any 4th Amendment expectation of privacy in them.
We may get some clarification on this when the U.S. Supreme Court decides Ontario v. Quon, a case from the Ninth Circuit. The Court agreed to review Quon in December, so it will be a while before the Supreme Court issues its decision in the matter. If you’re interested, I did a blog post on the Ninth Circuit decision in Quon.
This case is about a somewhat related issue: whether an employee of the U.S. Department of Justice could assert the attorney-client privilege with regard to 36 emails he sent via the Department of Justice’s email system. The case is Convertino v. U.S. Dept. of Justice, 2009 WL 4716034 (U.S. District Court for the District of Columbia 2009) (Convertino v. USDOJ), and this is how it arose:
Richard G. Convertino filed the Complaint against the United States Department of Justice on February 13, 2004, raising two counts. One count has been dismissed leaving only whether defendant willfully and intentionally disclosed information to a reporter for the Detroit Free Press in violation of the Privacy Act, 5 U.S. Code § 552a. The disclosed information most likely consisted of one or more documents from an investigation into plaintiff's conduct by defendant's Office of Professional Responsibility (`OPR’).
The OPR began an investigation in November of 2003 after the United States Attorney's Office for the Eastern District of Michigan referred allegations of prosecutorial misconduct against Assistant United States Attorney Richard Convertino -- former lead trial counsel in the case of United States v. Koubriti.Free Press. Following the leak, the Office of the Inspector General (`OIG’) began an investigation to determine who provided the information to the press, ultimately concluding that there was insufficient evidence to prove, by a preponderance of the evidence, who the leaker was. The OPR crafted a series of letters stating what issues the OPR would investigate and which it would not. A limited number of people had access to these private letters. On January 17, 2004 an article addressing the investigation by OPR was written by David Ashenfelter and published in the Detroit
Convertino v. USDOJ, supra.
The primary issue the district court judge was dealing with in this opinion was Convertino’s motion to compel the Department of Justice to produce “736 various documents” he believed were “responsive to his discovery requests” in the case. Convertino v. USDOJ, supra. The Department of Justice opposed the motion, arguing that the documents were covered by any of several privileges and therefore were “not discoverable.” Convertino v. USDOJ, supra. We, though, aren’t concerned with the dispute between the Department of Justice and Convertino. Our concern is with a subsidiary issue that was raised by Jonathan Tukel:
Mr. Tukel was originally a named defendant -- being sued in his official capacity -- on Count I of the Complaint which was subsequently dismissed by the court on October 19, 2005. Mr. Tukel was serving as First Assistant United States Attorney of the Eastern District of Michigan when this case was filed and remained in this position until May 2005. Mr. Tukel was one of the original parties that initiated confidential personal matters related to plaintiff. Plaintiff was required to meet with Mr. Tukel to discuss the review of the cases that had been handled by plaintiff. Mr. Tukel was part of a committee that drafted and sent allegations to OPR and he was one of the recipients of OPR's letters indicating which allegations it would investigate.
In anticipation of litigation, Mr. Tukel retained private counsel Cadwalader, Wickersham & Taft LLP (`Cadwalader’). While working for defendant [the Department of Justice], Mr. Tukel used his DOJ-provided e-mail address to communicate with Cadwalader. The e-mails were sent between Mr. Tukel and Cadwalader, no one else was included on the e-mails.
Convertino v. USDOJ, supra.
Once the court dismissed Count I of the complaint, Tukel was no longer part of the case. But Tukel apparently heard about Convertino’s motion to compel production of the 736 documents and was concerned because they included 36 emails between him and the Cadwalader firm. Convertino v. USDOJ, supra.
In an effort to protect his interests, he filed a motion to intervene in the case. Convertino v. USDOJ, supra. As Wikipedia notes, intervention is a procedure that lets nonparties join “litigation . . . without the permission of the original litigants. The . . . rationale . . . is that a judgment . . . may affect the rights of nonparties, who ideally should have the right to be heard.” Tukel therefore sought to intervene for the limited purpose of asserting his attorney-client privilege over these emails. Convertino v. USDOJ, supra. The court granted his motion, and then addressed the applicability of the attorney-client privilege.
It clearly applied to the emails because (i) they were communications between a client (Tukel) and his attorneys (Cadwalader) (ii) that concerned the representation and (iii) were made for the purpose of securing legal services. The Department of Justice apparently believed it applied; in opposing Convertino’s motion to compel the production of the emails, it claimed they were protected by the attorney-client privilege because they were “communications between Jonathan Tukel and his attorney(s).”
Plaintiff Richard G. Convertino’s Motion to Compel Production from Defendant United States Department of Justice, 2009 WL 2248745 (2009). Convertino, in response, pointed out that “the DOJ does not hold the attorney client privilege . . . , it is held and thus may be asserted only by Mr. Tukel.” Plaintiff Richard G. Convertino’s Motion to Compel Production from Defendant United States Department of Justice, 2009 WL 2248745 (2009). Convertino was quite right in this regard, which is why Tukel had to intervene.
The issue the district judge addressed was whether Tukel waived the privilege. Convertino raised the issue of waiver. He claimed that
the mere fact that the DOJ has these documents means that Mr. Tukel has waived any claim of privilege that he might have had; any disclosure of potentially privileged information, even inadvertently, to any third party (including government agencies) for any purpose destroys the privilege as to those documents and any related documents.
Plaintiff Richard G. Convertino’s Motion to Compel Production from Defendant United States Department of Justice, 2009 WL 2248745 (2009).
The judge explained that one can waive the attorney-client privilege by
disclosing confidential information to a third-party, however, no waiver exists if `(1) the disclosure is inadvertent;’ and `(2) `the holder of the privilege or protection took reasonable steps to prevent disclosure.’ [Federal Rules of Evidence Rule 502(b)]. In this case, the disclosure was inadvertent. Mr. Tukel had no intentions of allowing the DOJ, his employer, to read the e-mails he was sending to his personal attorney through his work e-mail account. Mr. Tukel also took steps to delete the e-mails as they were coming into his account -- failing to realize that his employer had the e-mails. Additionally, since discovering that the DOJ still had access to his e-mails in April 2009, Mr. Tukel has taken reasonable steps to prevent disclosure to more parties by filing a motion . . . to intervene [in this case].
Convertino v. USDOJ, supra. (You might wonder why the court quoted Rule 502 of the Federal Rules of Evidence. Since this is a federal case, it’s governed by the Federal Rules of Evidence, and Rule 502 sets certain limitations on the waiver of the attorney-client privilege, one of which is the inadvertent disclosure quoted above.)
The judge also found that Tukel “reasonably expected his e-mails with his personal attorney to remain confidential.” Convertino v. USDOJ, supra. He explained that for
documents sent through e-mail to be protected by the attorney-client privilege there must be a subjective expectation of confidentiality that is found to be objectively reasonable. . . . Each case should be given an individualized look to see if the party requesting the protection of the privilege was reasonable in its actions. . . .
On the facts of this case, Mr. Tukel's expectation of privacy was reasonable. The DOJ maintains a policy that does not ban personal use of the company e-mail. Although the DOJ does have access to personal e-mails sent through this account, Mr. Tukel was unaware that they would be regularly accessing and saving e-mails sent from his account. Because his expectations were reasonable, Mr. Tukel's private e-mails will remain protected by the attorney-client privilege.
Convertino v. USDOJ, supra.
You may notice that in deciding whether Tukel could assert the attorney-client privilege, this judge found that his ability to do so depended on whether he had a “subjective expectation of confidentiality [in the emails] that is found to be objectively reasonable.” That, as I’ve explained in various posts, is the same standard the U.S. Supreme Court uses to decide if someone has a 4th Amendment expectation of privacy in a place of thing. One could therefore argue that this federal judge implicitly held that Department of Justice employees have a 4th Amendment expectation of privacy in the contents of emails they send and receive via the Department of Justice's email system. While I, personally, think that argument works, I suspect the Department of Justice would emphatically disagree.