DOJ prosecutor Jonathan Tukel had a reasonable expectation of privacy in personal e-mail to his lawyer sent from a DOJ computer where the government permitted personal use of the government e-mail account. It was his e-mails being sought, so he was permitted to intervene in another’s case. Convertino v. United States DOJ, 2009 U.S. Dist. LEXIS 115050 (D. D.C. December 10, 2009):<\/p>\n
Mr. Tukel reasonably expected his e-mails with his personal attorney to remain confidential. (Id.) Case law in this jurisdiction is not directly on point but New York gives the Court some direction. “[T]he question of privilege comes down to whether the intent to communicate in confidence was objectively reasonable.” In re Asia Global Crossing, Ltd., 322 B.R. 247, 258 (S.D.N.Y. 2005). In order for documents sent through e-mail to be protected by the attorney-client privilege there must be a subjective expectation of confidentiality that is found to be objectively reasonable. See id. at 257 (outlining four factors to determine reasonableness; “(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee’s computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?”). Each case should be given an individualized look to see if the party requesting the protection of the privilege was reasonable in its actions. See Curto v. Med. World Commc’ns, Inc., No. 03-CV-6327, 2006 WL 1318387, *6 (E.D.N.Y. May 15, 2006); see also O’Connor v. Ortega, 480 U.S. 709, 718 (1987) (“Given the great variety of work environments, … the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.”).<\/p>\n
On the facts of this case, Mr. Tukel’s expectation of privacy was reasonable. The DOJ maintains a policy that does not ban personal use of the company e-mail. Although the DOJ does have access to personal e-mails sent through this account, Mr. Tukel was unaware that they would be regularly accessing and saving e-mails sent from his account. (See Tukel’s Mot. and Mem. of Law in Opp’n to Pl.’s Mot. to Compel at 4; see also Pl.’s Opp’n to Non-Party Tukel’s Mot. to Intervene at 5-6.) Because his expectations were reasonable, Mr. Tukel’s private e-mails will remain protected by the attorney-client privilege.<\/p><\/blockquote>\n
Hat tip to Blog of the Legal Times: District Court Finds Personal E-Mail From Work Still Privileged<\/a>, by Tresa Baldas:<\/p>\n
The party trying to get the e-mails is former federal prosecutor Richard Convertino, who lost his job after his convictions in a high-profile terrorism trial in Detroit were overturned in 2004 due to prosecutorial misconduct. Convertino, who believes he was retaliated against for blowing the whistle on incompetence in the Bush administration\u2019s war on terror, is trying to find out who leaked confidential information about an investigation into his conduct to the Detroit Free Press. <\/p>\n
Convertino believes Tukel\u2019s e-mails to his lawyer may shed some light on the matter.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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