In Sickels v. McDonough, No. 4:21-CV-00963-JAR (E.D. Mo. Nov. 9, 2023), Missouri District Judge John A. Ross granted defendant’s motion for Ruling on Waiver of Attorney-Client Privilege and/or Work Product Privilege, finding there was no privilege protection for emails that the plaintiff sent and received with her counsel that were stored in her work email account.

Case Background

The plaintiff was an employee of defendant Department of Veteran Affairs and brought action against defendant for employment discrimination and retaliation under Title VII of the Civil Rights Act of 1964. During discovery, plaintiff propounded on defendant interrogatories and requests for production seeking email communications and other ESI related to her claims.

The potentially responsive items included approximately 20 emails between plaintiff and her counsel or her counsel’s staff. Defendant’s counsel promptly sequestered those communications from her review and notified plaintiff’s counsel of possession of the potentially privileged communications. After meeting and conferring, counsel were unable to agree on whether the documents were protected by any privilege.

Because defendant’s policies stated that employees do not have an expectation of privacy when using their work email accounts or computer systems and that such systems are monitored, that plaintiff received annual training to that effect, and plaintiff nonetheless used her work email to communicate with her attorneys, defendant claimed that plaintiff waived the attorney-client privilege for those communications and any work product privilege for documents that were attached to those communications or saved on her VA electronic file system. Plaintiff did not respond to defendant’s motion.

Judge’s Ruling

In analyzing the dispute, Judge Ross stated: “As the party ostensibly claiming the benefits of the privileges, Sickels bears the burden of establishing the right to invoke their protection…She has not done so. She has not responded to Defendant’s motion or otherwise demonstrated that the documents are privileged.”

Continuing, he said: “Even if she had responded, Defendants show that Sickels waived any attorney-client privilege. The attorney-client privilege protects confidential communications between an attorney and a client from disclosure…But the communications must be confidential—that is, the client must reasonably expect that the communications would remain private…In the context of communications on an employer’s computer systems, ‘the majority of courts have found that an employee has no reasonable expectation of privacy in workplace e-mails when the employer’s policy limits personal use or otherwise restricts employees’ use of its system and notifies employees of its policy.’”

In finding that there was no privilege protection for emails that the plaintiff sent and received with her counsel, Judge Ross stated: “Defendant has proffered evidence that Sickels did not have a reasonable expectation of privacy on her work computer. Defendant’s policies limit use of government office equipment for personal use… Defendant also provided evidence that it requires employees to acknowledge that their activity is not private through a security warning banner every time they login and access their account on a VA computer system…It provides annual training about these policies…Sickels has undergone this training since she began her employment with the VA in 2012…And Sickels was warned in April 2018 not to use Defendant’s instant messaging system for anything that she wanted to keep private…This evidence shows that Sickels had no expectation of privacy on her email account and server. The disputed communications are therefore not protected by the attorney-client privilege.”

So, what do you think? Do you agree that there was no privilege protection for emails that the plaintiff sent and received with her counsel? Please share any comments you might have or if you’d like to know more about a particular topic.

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