By: Siddharth Sangal

Siddharth Sangal — Tue, 28 Apr 2009 05:02:10 +0000

I am quite amazed to read this New Jersey ruling regarding the attorney client privilege. The general requirements for a valid assertion of attorney-client privilege in many jurisdictions in the United States are:
• The asserted holder of the privilege is (or sought to become) a client; and
• The person to whom the communication was made:
- is a member of the bar of a court, or his subordinate, and
- in connection with this communication, is acting as an attorney; and
• The communication relates to a fact of which the attorney was informed:
- by his client,
- without the presence of strangers,
- for the purpose of securing primarily either:
 an opinion on law, or
 legal services, or
 assistance in some legal proceeding,
- and not for the purpose of committing a crime or tort; and
• The privilege has been claimed, and
• The privilege has not been waived.
Now the requirements for asserting the attorney client privilege though talks about communication, the source of communication and the mode of communication is nowhere mentioned. At the same time, the scope of “reasonable expectation of privacy” was not related to the assertion of privilege till now. Further, the issue of waiver (the privilege may be waived if the confidential communications are disclosed to third parties) was not extended to the scope where it could be said that the mode of communication of the privileged material shall be the asserter’s privately owned mode, or not bound under the IT Policy of a company or a person.
Now in the Loving Care case, the Court related the “reasonable expectation of privacy” of the employee with the “attorney client privilege” to use of the employer’s computer for communications between the employee and employee’s attorney(s).
The question before the Court was complicated but the article explained the same in a very simple manner. The Court gave due regard to the IT Policy of the Company and came to a conclusion, which to the facts of the case means that all communications sent from the office space (where there is an IT Policy warning the employees about the communication), even if logging to a privately held e-mail account, will not be considered private and will be deemed to be official material. At the same time, as such communications happened to be sent after IT Policy in place, and after knowing that such information will be a part of office material, and will also be a part of the hard drive of the owner of the mode of communication, the communication will be deemed to be disclosed to the third party and hence, attorney client privilege will stand to be waived.
The above case does raise certain questions as to whether it will be right to relate “attorney client privilege” to “reasonable expectation of privacy,” and whether the situation was apt to declare that in such situation the attorney client privilege shall be deemed to be waived.
Well, this seems to be an interesting and learning case, but at the same time a case, which can spark a disagreement to many.

Comments on: New Jersey Court Finds Waiver of Privilege in ‘Loving’ Way

By: Siddharth Sangal