United States District Court, D. Maryland, Southern Division
CHARLES B. DAY, UNITED STATES MAGISTRATE JUDGE
this Court is Defendants' Motion for Miscellaneous Relief
(the “Motion”) (ECF No. 57) and the opposition
thereto (ECF No. 65). The Court has reviewed the submissions
and the applicable law. No. hearing is deemed necessary.
See Local Rule 105.6 (D. Md.). For the reasons
presented below, the Court DENIES the Motion.
August 30, 2017, Defendants' counsel discovered records
reflecting 14 email communications between Plaintiff and her
attorneys. ECF No. 57; ECF No. 65; ECF No. 65-3. The
communications were allegedly contained in an email account
that Defendant VCA provided to Plaintiff in the course of
Plaintiff's employment. ECF No. 57; ECF No. 65. Upon
discovery, Defendants' counsel indicates that it
segregated these documents and made them inaccessible to
anyone except its assigned support specialist. ECF No. 57, p.
2. Subsequently, Plaintiff's counsel indicated that the
email communications were privileged. Id.; ECF No.
65-3. On January 26, 2018, Defendants' counsel filed this
Motion for resolution of the privilege disagreement.
claim that Plaintiff waived attorney-client privilege by
using an email account which was governed by Defendant
VCA's Information Systems Policy (“VCA's
Policy). ECF No. 57, p. 4; see also ECF No. 69-1.
VCA's Policy puts employees on notice that VCA's
email accounts are for official use and that VCA reserves the
right to monitor all such accounts. ECF No. 57, p. 3; ECF No.
69-1. In determining whether Plaintiff waived
her privilege by communicating with counsel through her work
email account, the first question is whether Plaintiff had
“a reasonable expectation of privacy as to the content
of the communications.” Maxtena, Inc. v.
Marks, 2014 WL 4384551, *19 (D. Md. Sept. 2, 2014)
(citing In re Asia Global Crossing, Ltd., 322 B.R.
247, 256-60 (Bankr. S.D.N.Y. 2005) (“the question of
privilege comes down to whether the intent to communicate in
confidence was objectively reasonable.” Id. at
assess waiver, courts have relied on a four-factor test: (1)
whether the employer has a policy in place banning personal
use; (2) whether the employer monitors the use of the
employee's use of email; (3) whether third parties have a
right to access to the computer or emails; and (4) whether
the employer notified the employee, or was the employee
aware, of the policy. Asia Global, 322 B.R. at 257.
For the following reasons, the factors weigh in favor of
maintaining the attorney-client privilege and DENYING
Defendant VCA's policy did not ban personal use
addressing the first factor from Asia Global, the
Court must first look to the language of VCA's Policy
regarding personal use. VCA's Policy, provided to the
Court by Defendant, states that “incidental personal or
non-business use of the Systems should be kept to a
minimum.” ECF No. 57; ECF No. 65; ECF No. 69-1
(emphasis added). Reading the language as written, the Court
is convinced that VCA's Policy does not affirmatively ban
personal use by its employees. Indeed, the language as
written directly acknowledges that personal or non-business
use of the Systems will occur, and encourages its employees
to keep that usage to a minimum. See, e.g., In
re High-Tech Emp. Antitrust Litig., No.
11-CV-2509-LHK-PSG, 2013 WL 772668 (N.D. Cal. Feb. 28, 2013)
(“[The employer] perhaps did not expect the type of use
that [the employee] engaged in when it added [such a]
qualification, but the court cannot say that its policy
represents an all-out ban on personal use.”).
Id. at *6. As such, the Court finds that the first
factor weighs in favor of protecting the attorney-client
Defendants failed to provide adequate evidence of active
monitoring of employee's use of email
Court is convinced that Defendants did not actively monitor
Plaintiff's email account during or after her employment.
In addressing Defendant VCA's right to monitor its
systems, VCA's Policy states the following:
In other words, messages on these systems are not to be
considered private. If you would not put a statement in a
written memo for public viewing, you should not transmit that
statement through VCA's systems. By using VCA's
Systems, and as a term and condition of employment, all VCA
Employees acknowledge and consent to VCA's right to
access, monitor, review, intercept and/or disclose any and
all data (transmitted to or from, stored in or deleted) from
the Systems, at any time, with or without notice, and for any
ECF No. 69-1, p. 3. Defendant argues that the presence of
this policy, making its employees aware that VCA retains the
right to monitor, warrants a finding that Defendant VCA did
in fact monitor its systems. ECF No. 57, p. 5. However,
Defendant VCA fails to provide any evidence that it actively
monitored its systems during or after Plaintiff's
employment. Indeed, Plaintiff correctly points to a number of
courts that have opined that the ability of an employer to
monitor an employee's communication is not sufficient to
waive attorney-client privilege; instead, evidence of actual
monitoring is needed. ECF No. 65, p. 7. While Plaintiff
provides case law that is not mandatory precedence, the Court
finds these decisions persuasive, especially considering that
Defendants provide nothing in the way of countervailing case
law. See Id. at 6- 7. As such, the Court's
inability to identify any evidence from Defendants showing
active monitoring of Plaintiff's emails, both during and
subsequent to her employment, tips the scales in favor of
maintaining the privilege.
Court finds that the third factor of whether there is third
party access to employee's emails does not favor either