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Are Plaintiff Email Threads Protected by the Marital Communications Privilege?

Posted on December 28th, 2012

While our blog typically focuses on plaintiff eDiscovery in class action lawsuits and MDL, in some instances, criminal courts also address electronic discovery issues that overlap into the civil realm. This is the case in the Fourth Circuit Court of Appeals case United States v. Hamilton, No, 11-4878 (Dec. 13, 2012). In the case, a Virginia state legislator was convicted of bribery and extortion when he secured public funding at a University in exchange for an employment position. Much of the case against the defendant rested on evidence of email threads and communications between him and his wife.

The Fourth Circuit considered the issue: Is the marital communications privilege waived when one party sends email to a spouse on a work computer? This holding does not seem to be limited to criminal cases, and it could easily be an issue arising in civil plaintiff ESI productions.

The Fourth Circuit began with the accepted premise that to assert the marital communications privilege, the individual must demonstrate that the conversation was meant to be private and was not disclosed to any third party. The court noted that the defendant worked part-time for the local school district and sent the emails from his work email account and work computer. Although there is a “reasonable expectation of privacy” in email threads, the school implemented an express email policy that all information on the school’s computer system is subject to inspection and monitoring at all times. Even though the defendant’s emails were sent prior to this policy, defendant did not to delete or erase the messages after the new policy was implemented. The court held he waived his right to assert the privilege when he failed to safeguard the messages after notice was given that the work email was subject to monitoring.

In class action lawsuits and MDL, plaintiff ESI production often looks quite different than defense productions. Social media accounts and email analytics are typically a large part of what defendants seek from individual plaintiffs.  In that regard, this criminal case’s holding extends to the civil system and reminds everyone that when using a third-party computer, typically a work computer, your right to privacy is limited and privileged communications may in fact be waived.

ILS – Plaintiff Electronic Discovery Firm

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