In Miller v. Zara USA, Inc., 2017 N.Y. Slip Op. 04407 (1st Dep’t June 6, 2017), the New York Appellate Division, First Department, held that where a company’s written policies clearly provide that employees have no reasonable expectation of privacy in personal information stored on a company-issued laptop, any communications stored on that laptop cannot be protected by the attorney-client privilege. This case has served to reinforce the First Department’s holding in Peerenboom v. Marvel Entertainment, LLC, 2017 N.Y. Slip Op. 01981 (1st Dep’t March 16, 2017), about which I wrote last month.
By way of background, while Plaintiff was employed by Zara as its General Counsel, Zara provided him with a laptop to use. After Zara terminated Plaintiff’s employment, he sued for discrimination, hostile work environment, and wrongful termination. Even after he was fired, Plaintiff continued to use the company-issued laptop to discuss his legal claims against Zara with his personal attorney. During discovery, Zara sought access to the laptop. In response, Plaintiff sought a protective order precluding Zara from accessing personal documents on the laptop, claiming that the documents were protected by the attorney-client and work-product privileges. The trial court issued the protective order and Zara appealed.
On appeal, the First Department found that the documents were not protected by the attorney-client privilege because Plaintiff lacked any reasonable expectation of privacy in his personal use of the company-issued laptop and thus “lacked the reasonable assurance of confidentiality that is foundational to attorney-client privilege.” He lacked any expectation of privacy, according to the Court, because Zara’s employee handbook specifically “restricted use of company-owned electronic resources, including computers, to ‘business purposes,’” warned that “[a]ny data collected, downloaded and/or created” on such resources was “the exclusive property of Zara” and “may be accessed by Zara at any time, without prior notice,” and stated that employees “do not have an expectation of privacy or confidentiality in any information transmitted or stored in Zara’s electronic communication resources (whether or not such information is password-protected).”
However, with respect to the attorney work-product, the First Department found that because Zara never actually viewed any documents stored on this laptop, and “[g]iven the lack of any actual disclosure to a third party, [Plaintiff’s] use of [Zara’s computer] for personal purposes does not, standing alone, constitute a waiver of attorney work product protections.” The First Department then remanded the case back to the trial court for an in camera review of the documents Plaintiff claimed to be attorney work product.
Thus, so you don’t inadvertently waive the attorney-client privilege, it is extremely important that employees never communicate with their personal attorneys through a company-issued laptop and instead always use a personal computer for these communications. If you are unsure whether these principles are applicable to you, it is smart to consult with a New York employment attorney at Moshes Law before utilizing your employer-issued computer to communicate with your personal attorney.