Federal Evidence Review

Private e-mail communications with private counsel were covered by the attorney-client privilege and the disclosure was inadvertent under FRE 502(b); other documents were protected by the deliberative process privilege and the work product doctrine, in Convertino v. U.S. Department of Justice, 674 F.Supp.2d 97 (D.D.C. Dec. 10, 2009) (No. Civil Action 04-0236 (RCL))

Does an expectation of privacy reasonably apply to private e-mails sent from a government e-mail server? Is any disclosure of the e-mails on the government e-mail server inadvertent under FRE 502? These issues and questions about the application of the deliberative process privilege were recently considered by the U.S. District Court for the District of Columbia.

In the case, former federal prosecutor Convertino filed a complaint against the U.S. Department of Justice alleging that his rights under the Privacy Act were violated by the disclosure of information from an Office of Professional Responsibility investigation to a reporter. The plaintiff moved to compel production of 736 documents. The issue before the court was whether the documents were not discoverable under the deliberative process privilege, the work product doctrine, or the attorney-client privilege. U.S. District Court Judge Royce C. Lamberth denied the motion to compel after agreeing the materials were protected.

Deliberative Process Privilege

The court first considered whether 697 documents were protected by the deliberative process privilege which applies to “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Convertino v. U.S. Department of Justice, 674 F.Supp.2d at 101 (quoting In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966))). The court concluded that the documents were “predecisional” and “deliberative” as required. In sum, the documents fell within ten categories:

“(1) notes and summaries by the OIG investigator, (2) other documents related to the OIG investigation, (3) documents related to inquires by Congress, (4) documents and correspondence to/from non-OIG/OPR government officials regarding those investigations, (5) documents related to plaintiff’s September 9, 2003 testimony before the Senate Finance Committee, (6) documents related to the Public Integrity investigation/criminal charges against plaintiff, (7) documents related to personnel actions regarding plaintiff, (8) documents related to the OPR investigation, (9) documents related to multiple or unspecified investigations, and (10) documents related to Koubriti litigation and file review.”

Convertino, 674 F.Supp.2d at 101-02. Two exceptions permitting disclosure did not apply, including “(1) the government’s intent is squarely at issue” since the intent was collateral to the claim, and “(2) there is any evidence of governmental misconduct,” which had not been shown. Finally, in balancing the needs of each party, the court concluded that “[w]e need to encourage candid communications among governmental officials, allowing officials to deliberate honestly with each other, without fear that their discussions will be exposed to the public.” Convertino, 674 F.Supp.2d at 107.

Work Product Doctrine

The court also determined that three e-mails and a set of notes of government counsel were covered by the work product doctrine, which protects materials prepared in anticipation for litigation unless the “party shows that is has a substantial need for the materials . . . and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3). Specifically, the plaintiff had not shown a “substantial need” for the documents.

Attorney-Client Privilege

Finally, the court considered whether 36 e-mails between former First Assistant U.S. Attorney in the Eastern District of Michigan, who was originally named as a defendant, and his retained counsel, were covered by the attorney-client privilege. As a federal prosecutor in the office, the plaintiff met with the First Assistant on his case reviews. The First Assistant was involved in the referral of a claim for investigation by the Office of Professional Responsibility and received communications on this matter. When the First Assistant anticipated litigation over the matter, he retained private counsel. As an employee of the Department of Justice, the First Assistance “used his DOJ-provided e-mail address to communicate with” to exchange e-mails with private counsel; “no one else was included on the e-mails.” Convertino, 674 F.Supp.2d at 108. The defendant Department of Justice did not assert a privilege over the 36 e-mails, which were retained on the department’s e-mail server. The court granted the First Assistant’s motion to intervene in the case “for the limited purpose of claiming attorney-client privilege and work product doctrine over a limited number of documents.” Convertino, 674 F.Supp.2d at 109 (citing Fed. R. Civ. P. 24(b)).

The court considered whether the privilege was waived by inadvertent disclosure under FRE 502(b), and concluded the disclosure was inadvertent:

“[The First Assistant] 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. [The First Assistant] 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, [the First Assistant] has taken reasonable steps to prevent disclosure to more parties by filing a motion and memorandum of law to intervene. [The First Assistant] reasonably expected his e-mails with his personal attorney to remain confidential.”

Convertino, 674 F.Supp.2d at 110 (citation omitted). The court also concluded that the First Assistant held “a subjective expectation of confidentiality that [wa]s found to be objectively reasonable.” Convertino, 674 F.Supp.2d at 110 (citing In re Asia Global Crossing, Ltd., 322 B.R. 247, 257 (S.D.N.Y. 2005) (outlining four factors to determine reasonableness; “(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee’s computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?”); see also O’Connor v. Ortega, 480 U.S. 709, 718 (1987) (“Given the great variety of work environments, . . . the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.”)).

The court concluded the attorney-client privilege covered the workplace e-mails:

“On the facts of this case, [The First Assistant]’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, [the First Assistant] was unaware that they would be regularly accessing and saving e-mails sent from his account. Because his expectations were reasonable, [the First Assistant]’s private e-mails will remain protected by the attorney-client privilege.”

Convertino, 674 F.Supp.2d at 110.

The Convertino decision raises a host of interesting issues concerning workplace e-mails, including in a government environment. The employee did not know his private e-mails would be retained by his employer. Upon learning that his employer had copies of the e-mails, he asserted the attorney-client privilege. On the facts of the case, the disclosure was inadvertent. Further, the case demonstrates the factors in considered in applying the deliberative process privilege.