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ATTORNEY-CLIENT PRIVILEGE DID NOT APPLY TO INFORMATION ON A COMPANY OWNED COMPUTER, HOWEVER ATTORNEY WORK PRODUCT PRIVILEGE MAY APPLY.

The First Department, reversing (modifying) Supreme Court, determined plaintiff could not assert attorney-client privilege to protect information on a company-owned laptop, but could assert the attorney work product privilege subject to court review of the log:

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Application of the factors set forth in In re Asia Global Crossing, Ltd. (322 BR 247, 257 [Bankr, SD NY 2005]) indicates that plaintiff lacked any reasonable expectation of privacy in his personal use of the laptop computer supplied to him by defendant Zara USA, Inc. (Zara), his employer, and thus lacked the reasonable assurance of confidentiality that is foundational to attorney-client privilege … . Among other factors, Zara’s employee handbook, of which plaintiff, Zara’s general counsel, had at least constructive knowledge… , restricted use of company-owned electronic resources, including computers, to “business purposes” and proscribed offensive uses. The handbook specified that “[a]ny data collected, downloaded and/or created” on its electronic resources was “the exclusive property of Zara,” emphasized that “[e]mployees should expect that all information created, transmitted, downloaded, received or stored in Zara’s electronic communications resources may be accessed by Zara at any time, without prior notice,” and added that employees “do not have an expectation of privacy or confidentiality in any information transmitted or stored in Zara’s electronic communication resources (whether or not such information is password-protected).”

Plaintiff avers, and defendant does not dispute, however, that, while reserving a right of access, Zara in fact never exercised that right as to plaintiff’s laptop and never actually viewed any of the documents stored on that laptop. Given the lack of any “actual disclosure to a third party, [plaintiff’s] use of [Zara’s computer] for personal purposes does not, standing alone, constitute a waiver of attorney work product protections” … . Miller v Zara USA, Inc., 2017 NY Slip Op 04407, 1st Dept 6-6-17

 

ATTORNEYS (PRIVILEGE, ATTORNEY-CLIENT PRIVILEGE DID NOT APPLY TO INFORMATION ON A COMPANY OWNED COMPUTER, HOWEVER ATTORNEY WORK PRODUCT PRIVILEGE MAY APPLY)/PRIVILEGE (ATTORNEYS, ATTORNEY-CLIENT PRIVILEGE DID NOT APPLY TO INFORMATION ON A COMPANY OWNED COMPUTER, HOWEVER ATTORNEY WORK PRODUCT PRIVILEGE MAY APPLY)/ATTORNEY-CLIENT PRIVILEGE (PRIVILEGE DID NOT APPLY TO INFORMATION ON A COMPANY OWNED COMPUTER, HOWEVER ATTORNEY WORK PRODUCT PRIVILEGE MAY APPLY)/ATTORNEY WORK PRODUCT PRIVILEGE (PRIVILEGE DID NOT APPLY TO INFORMATION ON A COMPANY OWNED COMPUTER, HOWEVER ATTORNEY WORK PRODUCT PRIVILEGE MAY APPLY)

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