Monthly Archives: May 2006

Curto v. Medical World Communications – Attorney client privilege on recovered documents

Curto v. Medical World Communications, Inc., et al.

Decided May 15, 2006, E. District of New York, No. 03 CV 6327 (2006 WL 1318387)

Plaintiff, Lara Curto, has an ongoing EEOC complaint against the Defendants.  While still employed, she used company-issued laptops in her home office to correspond with her attorneys.  She was careful to use an outside mail service to make sure her memos was not transmitted over the company’s mail system.  Also, the documents were deleted from the laptops prior to her return of the machines.  Defendant Medical World Communications later hired a forensic consultant to examine and recover documents from both laptops.  Plaintiff then asserted attorney-client privilege on these recovered documents.  The magistrate judge agreed, and now Defendant appeals.

Defendants did have a computer usage policy which states that all computers can only be used for business purposes and there is no expectation of privacy for any personal data created, stored, sent or received on these work computers.  However, Defendants only enforced this policy in limited circumstances which gave the employees a false sense of security in their data.

The magistrate judge applied a test with four factors to judge whether the disclosure of these privileged documents was inadvertent.  The magistrate ruled that the balance of factors weighed in favor of the Plaintiff, ruling that the documents were still covered by privilege.  Specifically, the Plaintiff did take reasonable precautions to keep the documents private, the volume disclosed was small, she promptly asserted the privilege upon notification of their recovery, and public policy of encouraging full disclosure with attorneys also weighed in her favor.

The appeal focused on whether the magistrate judge was correct in considering whether the Defendants enforced its computer policy.  It was considered as part of the analysis of whether the Plaintiff acted reasonably in taking precautions to avoid disclosure.  Defendants focused on the well-established body of law that establish that employees have no expectation of privacy on workplace computers where there is a company policy.  However, these cases do not address the related question as to whether an attorney-client privilege could still remain in these materials even though there is no privacy right per se.

In other words, Plaintiff could not object to the forensic computer expert’s analysis and recovery of deleted files from the work computers on the basis of privacy.  However, she still could assert attorney-client privilege in some of these deleted files.

Another factor found important by the court is that these were computers used in a home office.  The court specifically does not address whether such a privilege could be asserted in a computer used in a corporate office environment, noting that these cases are so fact specific they must be analyzed on a case by case basis.

Holding: The magistrate judge’s order is affirmed.

Net Neutrality Update

I’ve been following the debate over Net Neutrality rather closely. Since more and more of our economy depends on the Internet for basic functionality, like the reliable functioning of email, VOIP, and telecommuting applications, this debate concerns *everyone.* Higher costs for Internet traffic will be passed along to the economy and end users ultimately. Further, more and more big lobbying interests like the financial industry are starting to realize what this means to their bottom line. They are starting to counter-lobby against the pro-telco forces that are currently at play.

What many people do not seem to understand is that all users of the Internet pay for their traffic. End users pay for access and content providers pay for the bandwidth used to distribute their data. Trust me, you do *not* want to be personally liable for Google’s bandwidth bill. If the telcos do not make enough, perhaps the solution is to charge higher bandwith rates, not discriminate against different types of traffic. Higher rates, though, would be passed along as a business expense to everyone down the line, so it’s not a perfect solution either way.

  • For a great audio debate on both sides of the issue, check out Public Radio’s Open Source with Christopher Lydon. The May 4, 2006 show is available for download from the website. The debate between Siva Vaidhyanathan and Dave McClure really hits many of these issues straight on. It’s well worth a listen.
  • A counterproposal to the telecommunications bill currently before Congress was introduced on May 2nd by Congressman Ed Markey. It’s called the Network Neutrality Act of 2006, here is a link to the bill.
  • Another advocacy group has materialized, called Don’t Mess With The Net. The group is supported by Amazon, eBay, Google, Microsoft and Yahoo!.
  • Tim Berners-Lee, one of the creators of the world wide web that sits on top of the Internet, wrote a great article summarizing why the Net should be neutral. In particular, I like this quote: “When, seventeen years ago, I designed the Web, I did not have to ask anyone’s permission. The new application rolled out over the existing Internet without modifying it. I tried then, and many people still work very hard still, to make the Web technology, in turn, a universal, neutral, platform. It must not discriminate against particular hardware, software, underlying network, language, culture, disability, or against particular types of data. “
  • Spyware Installer ordered to pay $4,000,000 in Restitution

    Sanford Wallace, former spammer and now spyware installer with his company Smartbot.Net, today was ordered by a New Hampshire district court to pay restitution to consumers in the amount of four million dollars. Co-defendants OptinTrade and Jared Lansky were required to pay $227,000 in restitution. The complaint alleges that the Defendants installed spyware on user’s… Continue Reading