In Jim Daws Trucking, LLC v. Daws, Inc., No. 4:24CV3177 (D. Neb. Sept. 23, 2025), Nebraska Magistrate Judge Michael D. Nelson, ruling on e-mail communications that existed on a server sold by defendants, stated: “regardless of which party has the burden to establish waiver, the Court finds the outcome is the same: the attorney-client privilege was waived”. He also found that privilege was waived on post sale e-mail communications and two October 2024 e-mails inadvertently disclosed.
Case Discussion and Judge’s Ruling
In this case, Plaintiffs asserted claims of breach of contract, breach of fiduciary duty, and tortious interference over the sale of Daws Trucking, Inc. (by Jim Daws) to Jim Daws Trucking (JDT). As part of an Asset Purchase Agreement (APA), the Daws, Inc. server was transferred to JDT. Plaintiffs contended that the APA transferred all data on the server to JDT, which meant the emails on this server are now their property. Jim Daws, claiming to be not “tech savvy,” stated he “did not ‘intend’ to sell the data contained on the server,” including business communications for his other companies and personal emails.
Upon reviewing the server’s data, Rick Fernandez (co-owner of JDT) claimed to have discovered emails between Jim Daws and his attorneys outlining a plan to “create a mass resignation of employees from JDT, receive additional value for what was already sold to JDT, and/or devalue JDT to the point where Jim could reacquire it for far less than he sold it.”
Considering Defendants motion for a protective order on the emails, Judge Nelson stated: “Nebraska law is unclear as to which party bears the burden of proving waiver or absence of waiver, and courts have reached differing conclusions on this point… In this case, regardless of which party has the burden to establish waiver, the Court finds the outcome is the same: the attorney-client privilege was waived.”
Continuing, he said: “With respect to Jim’s pre-sale e-mail communications on the server, Defendants do not address the voluntary disclosure of allegedly privileged e-mails through the sale of the server. Notably, after the APA, neither Jim nor his attorneys ever instructed JDT, Rick, or Ricky to delete any pre-sale communications…After the asset sale, JDT took possession of the server, which included all pre-sale communications…Jim claims he did not intend to sell the data on the server that belonged to his other companies or his other personal communications…However, through the asset sale, Jim voluntarily disclosed the communications contained on the server, thereby waiving the attorney client privilege… The Court finds that while the attorney-client privilege may have previously existed, Jim waived such privilege as to pre-sale communications when he sold the server on which those communications were contained.”
For emails sent by Jim Daws after he became a JDT employee, Judge Nelson analyzed whether he had a reasonable expectation of privacy. The analysis centered on a four-factor test established in other jurisdictions, as Nebraska courts have not addressed the issue directly:
- Company Policy on Email Use: The Daws, Inc. handbook, which Judge Nelson found continued to apply to JDT as a “going concern,” contained explicit policies undermining privacy.
- Company’s Right to Monitor: Judge Nelson found the defendants’ argument that JDT never actually monitored emails “uncompelling.” The employer’s reservation of the right to monitor is sufficient to defeat an employee’s expectation of privacy, regardless of whether that right is exercised.
- Third-Party Access: JDT, as the owner of the server, was a third party with direct access to all employee emails.
- Employee Notification of Policy: As the former President of Daws, Inc., Jim Daws was aware of the handbook’s existence and its policies. His “misunderstanding of the handbook’s application to him does not change the fact that he was aware of the policy.”
Based on this analysis, Judge Nelson concluded that Jim Daws “did not have a reasonable expectation of privacy in his post-sale e-mail communications,” and therefore the attorney-client privilege was waived.
Defendants also claimed privilege over two emails sent by Jim Daws’s attorney to his old jim@daws-trucking.com email address on October 1 and October 9, 2024, after his employment had ended.
Judge Nelson stated: “Defendants provided no evidence of reasonable steps taken to protect the e-mails from inadvertent disclosure, nor do they provide evidence of reasonable steps taken to rectify the error after learning of it. As such, the Court finds the inadvertent disclosure operated as a waiver of the privilege in these October 2024 e-mails.” So, he denied Defendants’ Motion for Protective Order and Destruction of Privileged Documents in Plaintiff’s Possession or Control in its entirety.
So, what do you think? Do you agree that the attorney-client privilege was waived in all instances? Please share any comments you might have or if you’d like to know more about a particular topic.
Hat tip to Judge Andrew Peck for suggesting the case and to Michael Berman for his previous coverage here!
Case opinion link courtesy of Minerva26, an Affinity partner of eDiscovery Today.
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