Wednesday, December 12, 2007

Monitoring and the attorney-client privilege

Greetings from the frozen mid-West.

There has been some interesting commentary on the subject of the effect of computer and phone monitoring on military defense counsel's ability to have privileged communications with their clients.

LeEllen Coacher, who is now on Judge Stucky's staff at CAAF, wrote an interesting Air Force Law Review article that addressed that issue. See LeEllen Coacher, Permitting Systems Protection Monitoring: When the Government Can Look and What It Can See, 46 A.F. L. Rev. 155, *183-88 (1999).

The ABA has also issued a relevant ethics Formal Opinion. ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion No. 99-413, Protecting the Confidentiality of Unencrypted E-Mail, Formal Opinion No. 99-413 (March 10,k 1999).

These sources would tend to suggest that DOD monitoring does not defeat the privilege, especially where DOD has regulations limiting the permissible secondary disclosure of privileged communications. Does anyone have authority suggesting that the attorney-client privilege would be defeated in this context?


Anonymous said...

But, is there a difference between a system administrator monitoring to ensure the health of the system and a system administrator (or a law enforcement professional) monitoring to discover criminal acts? I other words, when is monitoring really a search, and does it matter? Another question; how does a commander's ability to inspect assets under his control impact monitoring (or inspecting) computer assets? This is not necessarily a simple question.

Anonymous said...

Also, can we make a distinction between informal monitoring - fishing for evidence, for clues, etc., as part of an investigation -and a formal introduction of that evidence in court. (Think of the library records scene in "Se7en" - where Brad Pitt and Morgan Freeman get Kevin Spacey's library records - "we could never use them in court...but") I think that CAAFlog provides support that formal introduction of any communications in a courtroom setting will not be permitted - but can we be confident about more informal forms of fishing?

Phil Cave said...

Court Allows Imaging of Employee’s Laptop Hard Drive

Sims v. Lakeside School, 2007 WL 2745367 (W.D.Wash. Sept. 20, 2007). In this discovery dispute, the defendant made an image of the plaintiff’s employer-owned laptop with no objection from the plaintiff. Shortly thereafter, the plaintiff objected, prompting
the defendant to file this motion to compel review of the hard drive. The court found the plaintiff had no reasonable expectation of privacy since the laptop was
furnished by his employer and clearly articulated in the employee manual. The court granted the defendant’s request to review the contents of the plaintiff’s hard drive excluding web-based generated e-mails, communications between the plaintiff and his spouse (marital communications privilege) and communications between the plaintiff and his attorney (attorney client privilege). Agreeing with the defendant’s proposal as to how the hard drive should be imaged, the court ordered the defendant to provide, at its expense, the parties with a list of files from the plaintiff’s computer,
allowing the plaintiff a chance to review for any privileged files.