Marital Privilege Over Emails Rejected in Oil Spill Litigation

The massive litigation over the Gulf oil spill has spawned a wide range of significant legal issues.  Here's an interesting little one. The magistrate judge in the MDL has held that a BP drilling engineer cannot assert marital privilege regarding e-mails to his spouse sought by the plaintiffs. In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico on April 20, 2010, MDL 2179 (E.D. La., 3/28/11).

Mr. Morel was employed by BP as a drilling engineer on the Macondo Well.  Plaintiffs and several defendants wanted to depose him.  The witness asserted the marital privilege as to certain email communications which were produced by BP to the Plaintiff Steering Committee. He contended that 93 documents containing email communications between himself and his wife should be returned to him or destroyed. His wife was a production engineer for BP, with no duties relating to the well. 

All of the email communications at issue were made through their BP email accounts. But the witness urged that: (1) BP permitted the personal use of company email; (2) it did not indiscriminately or randomly monitor its employees’ emails; (3) no third party other than BP had a right to access Mr. Morel’s email account.  The court framed the issue as whether BP’s notification
statements and email policies were sufficient to defeat Mr. Morel’s assertion of the marital privilege over the emails.

BP computer screens included the statement that “[w]ithin the bounds of law, electronic transmissions through internal and external networks may be monitored to ensure compliance with internal policies and legitimate business purposes."  BP’s Code of Conduct Policy provided that: Personal data, information or electronic communications created or stored on company computers or other electronic media such as hand-held devices are not private.

Mr. Morel, however, argued that the determination of privilege should not be made on the basis of the written BP policies but on how those policies were implemented.

There are a number of cases finding that when an employer has a rule prohibiting personal computer use, an employee cannot reasonably expect privacy in their prohibited communications.   Miller v. Blattner, 676 F.Supp.2d 485 (E.D.La. 2009); Thygeson v. U.S. Bankcorp, 2004 WL 2066764 (D. Or.); Kelleher v. City of Reading, 2002 WL 1067442, *8 (E.D. Pa.).

BP had no such prohibition, but BP notified its employees that electronic communications could
be monitored and accessed by BP. There are a few cases indicating that policies short of a prohibition of personal use can defeat an expectation of privacy. Muick v. Glenayre Electronics, 280 F.3d 741 (7th Cir. 2002); United States v. Etkin, 2008 WL 482281 (S.D.N.Y); Sims v. Lakeside School, 2007 WL 2745367, *1 (W.D. Wash.).

Based on these cases, this court found that it was not objectively reasonable for an employee to have an expectation of privacy where the employers’ policies clearly demonstrate that the employee’s electronic communications may be monitored and accessed by the employer; and thus they were subject to production by a subpoena.
 

California Enacts E-Discovery Reform

California Gov. Arnold Schwarzenegger has signed into law a new enactment governing e-discovery in that state.  Readers of MassTortDefense know what a significant issue electronic discovery has been in products litigation, particularly since the amendments to the Federal Rules of Civil Procedure more specifically focused on e-discovery issues. Rather than a device to uncover relevant facts for the litigation, e-discovery often is about plaintiffs’ attempt to find some alleged misstep by the defendant that will bring sanctions.

The Governator signed the Electronic Discovery Act, establishing new rules and procedures for litigants who seek electronically stored information.  The law is designed to make discoverable only  those reasonably accessible sources of electronic data, and it provides that litigants shouldn't be sanctioned for losing data through the ordinary operation of an electronic system. The law establishes that a party may move for a protective order from an electronic discovery request on the grounds that the information sought is inaccessible, though it gives courts discretion to require limited discovery in those cases if the demanding party shows good cause, subject to specified restrictions in specified circumstances.

California courts may also limit electronic discovery from accessible sources if they determine that the information sought could be obtained by other means, is duplicative, or if the expense of
the discovery outweighs its likely benefit. While the Electronic Discovery Act allows courts to
impose sanctions on parties which fail to comply adequately with discovery requests, the courts shall not impose sanctions on a party (or any attorney of a party) for failure to provide electronically stored information that has been lost, damaged, altered or overwritten as the result of the routine, good faith operation of an electronic information system.

The new law also requires discovered materials to be produced in the form in which they are kept in the ordinary course of business.

MassTortDefense noted that a survey by the U.S. Chamber of Commerce Institute for Legal Reform of chief legal officers at Fortune 100 companies revealed that:

-On average, 45‐50% of respondents’ civil litigation costs in 2007 related to discovery activities.

-Discovery of ESI accounted for, on average, a significant share (between 33‐39%) of total discovery costs.

-Costs associated with e‐discovery vendors were reported in 63% of large cases. When used, e‐discovery vendors accounted for, on average, 10‐12% of total costs.

-About 61% of case respondents felt that certain discovery requests received from the opposing party were designed to impose undue settlement pressure by increasing the costs to continue the litigation.

-In both state and federal court, the company respondents reported that more than half of their civil litigation matters involved the receipt of discovery requests that sought information beyond the claims or defenses at issue.

- About 31% of company respondents reported that at least 40% of the time ESI requested from them by the opposing party is not reasonably accessible.

This bill is to take effect immediately as an urgency statute.