Work computer e-mails to lawyer privileged

An employee communicating with his lawyer on a company-owned computer could assert the attorney-client privilege because he hadn’t received adequate warning the e-mail exchanges might be read by the employer, a Massachusetts Superior Court judge recently decided.
The employer, TransOcean Capital, Inc., argued the exchanges weren’t confidential since the employee used a company computer and e-mail address to send and receive the transmissions with his lawyer.
But Judge Ralph D. Gants ruled the employee, Glenn Fortin, did not have fair notice the employer was authorized to read his e-mails. Gants barred questions being asked at a deposition about certain attorney-client communications. (TransOcean Capital, Inc. v. Fortin, et al.)
Both Alan E. McKenna of Boston, who represented the employee, and Don M. Kennedy of Boston, counsel for the employer, declined to comment due to the pending nature of the case.
Sharon R. Burger of Boston, a management-side labor lawyer who handled a case before Gants in September involving e-mail communication and the attorney-client privilege, said the decision emphasizes the importance of giving notice to employees
“This decision reinforces the notion that an employer may have a policy with respect to Internet use, but to be effective it has to be clear and has to be properly communicated to employees in order to make it work,” said Burger, who was not involved in the case.
“What the court is saying, and has said before, is that the attorney-client privilege is something that is central to our jurisprudence, and that is too important of a concept to deem it waived or relinquished easily,” she said. “The fundamental issue is fairness to the employee, and that would include a clear and concise policy and effective communication of that policy to employees.”

Uneasy acquisition
In June 2001, Gulf Investment House of Kuwait (GIH) hired the defendant, Glenn Fortin, to serve as a founding principal of TransOcean, a wholly owned subsidiary of GIH.
Fortin was hired to identify possible corporate acquisitions for the company and to execute and manage any resulting transactions.
In 2004, Fortin informed GIH that a business it had previously expressed interest in, EZ Lube, was available for acquisition.
He eventually sent GIH an e-mail recommending further pursuit of the deal and asking for funds to negotiate a letter of intent and perform preliminary due diligence.
In September 2004, Fortin asked GIH in an e-mail whether he should continue working on the EZ Lube transaction. The next day, GIH replied by criticizing him for not providing sufficient information about the proposed deal.
Later that month, Fortin introduced EZ Lube to other buyers.
Without GIH’s knowledge or approval, he also incorporated an independent investment business, Turbo Acquisition, Inc., which later entered into a letter of intent to acquire all outstanding EZ Lube shares.
As that was happening, a vice president at TransOcean spoke to Fortin and eventually threatened to resign unless Fortin obtained legal advice on the permissibility of his actions.
Fortin authorized the vice president to call an attorney at Hale and Dorr (now WilmerHale) in order to retain a labor and employment lawyer.
Fortin prepared a written description of the background leading up to the proposed transaction for the lawyer and set forth various questions regarding the legality of his actions.
When a lawyer was located at Hale and Dorr, Fortin authorized the vice president to e-mail him the description he had prepared.
The lawyer, John F. Batter III, spoke to Fortin for roughly an hour after receiving the description. He also listened to a voice mail and read an e-mail sent by Fortin.
When asked at a deposition about the content of their telephone, voice-mail and e-mail communications, both Fortin and his lawyer invoked the attorney-client privilege.
At least two of the e-mails were recovered by the company from its computer server.

No notice
Although aspects of the e-mails were not privileged since the employee had disseminated them to a third party, Gants ruled that the greater part of the attorney-client communications were protected.
Gants faulted the company for not having its own employee manual setting forth a policy regarding the review of e-mails contained on business computers.
Instead, Gants wrote, the company had retained an outside entity to handle various human resources matters, including the use of computers.
Although the outside entity maintained an employee handbook on its website that said that all communications transmitted on business computers belonged to and could be monitored by the company, the judge ruled that proper notice of its existence had not been given to employees.
The judge found TransOcean had neither explicitly nor implicitly adopted the employee handbook as its own, and further stated there was no information to suggest the employee had ever seen the handbook or even knew it existed.