We often hear of an employee downloading trade secrets and other proprietary information when he leaves a company, but what happens when the employee downloads privileged emails between himself and in-house counsel? Can the pilfering employee keep his communications even though it is the company’s privilege? Should the court disqualify the employee’s counsel for reading and not returning the privileged emails? The court’s opinion in Sanchez v. Maquet Getinge Group, 2018 WL 2324679 (N.J. Super. Ct. App. Div. May 23, 2018), provides lessons on these issues. You may read it here, and I discuss it below.
Oscar Sanchez worked as a compliance officer (yes, compliance officer) for Maquet, a pharmaceutical company that designs, manufactures, and distributes medical devices. Sanchez received a disciplinary warning, and then downloaded two Maquet executives’ hard drives and a “binder full of emails” that included emails between him and Maquet’s in-house lawyer regarding FDA compliance issues.
Sanchez took the privileged emails even though he signed a “Confidential Information, Invention Assignment, and Non-Compete Agreement” with Maquet prohibiting him from disclosing confidential information and requiring him to return company documents upon termination. Maquet learned of Sanchez’s possession of its privileged communications when he produced them in discovery, and immediately demanded their return.
Privilege is Threshold Issue
Sanchez first argued that the privilege did not apply because the in-house lawyer was only copied on emails or did not respond to the emails and, consequently, did not provide legal advice. The appellate court upheld the trial court’s privilege finding, noting that Sanchez labeled the emails “ATTORNEY CLIENT PRIVILEGE.” Looks like an easy call there. More…
Now this is interesting. A plaintiff sues a product distributor in California claiming product-related injuries. She learns of a different plaintiff with a similar claim in New Jersey against the same distributor. She subpoenas the distributor’s New Jersey mediation statement and, guess what—they produced it. Yes, really.
So what happened? The distributor sought to claw-back the mediation statement claiming the mediation privilege protected it. And the court agreed, essentially blocking any waiver argument and chastising the plaintiff for even trying! Lakes v. Bath & Body Works LLC, 2018 WL 2318106 (E.D. Cal. May 22, 2018). You may read it here.
Crystal Lakes sued Bath & Body Works alleging that she suffered burns when one of BBW’s candles “flared” and “exploded.” Lakes learned of similar flaring litigation in New Jersey, and subpoenaed the “litigation records” from the NJ plaintiff’s counsel and BBW’s NJ counsel. Both lawyers produced BBW’s “brief submitted in the mediation or settlement proceedings.”
BBW then filed a motion to claw-back its mediation statement from Lakes’ clutched hands, and Lakes countered with a motion to compel. BBW argued that the mediation privilege required the statement’s return, but Lakes countered that BBW waived the privilege by producing it or, alternatively, that the court should impose a crime–fraud exception to the privilege. More…
A lawyer and his smart phone—that inseparable couple— create unique privilege issues when they cross an international border. Border agents may demand to search your phone, including emails protected by the attorney–client privilege.
Several articles over the last several months, including this one from the ABA and this one from The New York Times, discuss U.S. Customs and Border Protection (CPB) agents’ authority to search a lawyer’s phone when she crosses the border. The CPB has a policy directive, available here, that governs the search of a lawyer’s phone when the lawyer raises the privilege issue. And the New York City Bar Association issued an ethics opinion, available here, instructing lawyers how to handle U.S. border agents’ inspection of lawyers’ smart phones.
But what about policies and laws when lawyers cross the Canadian border? May the Canadian Border Services Agency demand to search your privilege-laden phone? Are there strategies, technologies, and other practice tips for handling search demands? Will the CBSA care about Canada’s solicitor–client privilege?
I don’t have the answer, but fortunately Toronto lawyers Nader R. Hasan and Gerald Chan do. In their article, Flying With Your Cell Phone? Here’s What You Need to Know, Hasan and Chan identify the issues and offer practical tips for protecting privileged information when crossing the Canadian border. You may read the article here.
My thanks to Susan Gunter of the Dutton Brock firm for alerting me to the issue and the article. Enjoy.