New England Litigation

Congressional Efforts to Overturn Iqbal Move Forward

So I've previously blogged about the potential (and by now actual) impact of the Supreme Court's recent Iqbal decision on the notice pleading standards for purposes of Fed. R. Civ. P. 12(b)(6).  See this post.

The Senate Judiciary Committee is considering legislation sponsored by Senator Arlen Specter of Pennsylvania designed to return notice pleading back to what it was pre-Iqbal and pre-Bell Atlantic v. Twombly.

The Notice Pleading Restoration Act of 2009, S. 1504, states in its entirety:

Except as otherwise expressly provided by an Act of Congress or by an amendment to the Federal Rules of Civil Procedure which takes effect after the date of enactment of this Act, a Federal court shall not dismiss a complaint under rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957).

Congressional bills aren't often known for their brevity, but this one certainly is.

In his prepared remarks included in the Congressional Record, S.7890-91 (July 22, 2009) accompanying the introduction of the bill, Senator Specter remarked that "Not until a plaintiff has had access to relevant information in the defendant's possession during the discovery process that follows the filing of a complaint as a matter of right can the plaintiff normally offer evidence to support the complaint's allegations."  That certainly sounds like a fishing expedition.  One would think that, at least in most cases, a plaintiff would have some evidence supporting his own claims before rummaging through the defendant's files.

As Senator Specter continued, "When it passed the Rules Enabling Act, Congress established a carefully designed process for amending the Federal Rules of Civil Procedure.  The process ends with the Supreme Court's presentation of a proposed rule change to Congress for approval.  In Twombly and Ashcroft the Court effectively end ran that process."

A subcommittee of the House Judiciary Committee held a hearing yesterday afternoon on "Access to Justice Denied – Ashcroft v. Iqbal."  It's not clear if Senator Specter's bill itself was considered, or just the issue of Iqbal more generally.  In any event, the reverberations of Iqbal continue.

No Reasonable Expectation of Privacy in Email Sent Through Employer's Server

A Florida court recently issued another reminder to employees to be careful what they send through their employer's email systems, because depending on the company's policies there may be no reasonable expectation of privacy sufficient to maintain the attorney-client privilege.

In Leor Exploration & Prod., LLC v. Aguiar, 2009 WL 3097207 (S.D. Fla. Sept. 23, 2009) (click here), the court was asked to consider the applicability of the attorney-client privilege for an email sent from counsel for the defendant (who previously was employed by plaintiff), summarizing a prior conference call that took place when defendant was still an employee of plaintiff.

The defendant argued that, during his employment with plaintiff, the in-house lawyer served in some capacity as defendant's "personal advisor," although not as his personal attorney.  As a result, the defendant asserted that the email was a privileged communication between his lawyer and his “personal advisor and agent.”  The court first addressed whether the relationship between defendant and plaintiff's in-house counsel was such that the privilege could even attach to the communication at all, then moved on to consider whether, regardless of the nature of that relationship, defendant could have had any reasonable expectation of privacy in a personal email communication sent through his then-employer's server.

The court concluded that the defendant did “not establish the intent to maintain [the email] confidential.”  As support, the court observed that at the time he sent the email, defendant's lawyer knew that the recipient was an in-house lawyer working for plaintiff, and that he was sending the email through plaintiff's server to the in-house lawyer's work email account.  The court discussed four factors to be considered in determining whether an employee has a reasonable expectation of privacy in work-related email:

(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 email, (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?

Slip op. at 9.  According to the court, all four of the factors was present, in large part because the plaintiff's company manual provided that the plaintiff "owns all electronic communications and that individuals using the [plaintiff's] email system have no expectation of privacy."  Id.  The manual further provided that plaintiff "may access and monitor the use of its systems and equipment from time to time and that employees should not use [plaintiff's] electronic ... communications systems to communicate, receive, or store information that they wish to keep personal or private.”  Id.

The court rejected defendant's argument that his "personal advisor" relationship with the in-house counsel should be sufficient to create a reasonable expectation of privacy, in spite of the "generic" employee manual to the contrary.  "There is no evidence that anyone at [plaintiff] made assurances to [defendant] that he could disregard [plaintiff's] email policy so long as [in-house counsel] was acting as [defendant's] personal advisor.  To the contrary, the record establishes that both [in-house counsel] and [defendant], as employees of [plaintiff], were subject to the email policy."  Id. at 10.

The court therefore held that the email was not protected by the attorney-client privilege because there was no reasonable expectation of privacy inherent in sending a personal email through the defendant's then-employer's email system.

Update on Mohawk Industries Case

As an update to my post of September 25th, regarding the upcoming oral argument before the Supreme Court in Mohawk Industries Inc. v. Carpenter, addressing the appealability of discovery orders implicating the attorney-client privilege, the Court held its argument on October 5th, the first day of its regular Fall term.

According to reports, several of the justices seemed skeptical about providing additional protection for the attorney-client privilege not allowed for other privileges.  The link to the oral argument transcript is here.

We will have to wait and see what the outcome is.

Sometimes Blogging Goes Too Far

As a distraction from the exciting world of e-discovery, you might want to check out the ABA's recent article, Too Much Information: Blogging Lawyers Face Ethical and Legal Problems, that summarizes a variety of situations around the country where lawyers have gotten into trouble in the past few months for things they said in their blogs.

The situations ranged from insults directed at judges, to disclosures about client confidences, to - in the instance of one tech-savvy judge not afraid to use Facebook - discovering that a lawyer who claimed to have suffered a death in the family, requiring a continuance, had actually spent the week out drinking.

Luckily a blog about electronic discovery and evidence doesn't lend itself to the same risk of indiscretion.