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Kreuze v. VCA Animal Hospitals, Inc.

United States District Court, D. Maryland, Southern Division

April 20, 2018

MOLLY (WEINGARTEN) KREUZE, Plaintiff,
v.
VCA ANIMAL HOSPITALS, INC., et al., Defendants.

          MEMORANDUM OPINION

          CHARLES B. DAY, UNITED STATES MAGISTRATE JUDGE

         Before 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.

         I. Background

         On 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.

         II. Discussion

         Defendants 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.[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 258)).

         To 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 Defendants' Motion.

         A. Defendant VCA's policy did not ban personal use

         In 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 privilege.

         B. Defendants failed to provide adequate evidence of active monitoring of employee's use of email

         The 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 purpose.

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.[2] 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.

         C. The Court finds that the third factor of whether there is third party access to employee's emails does not favor either ...


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