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Curto v. Medical World Communications

May 15, 2006

LARA CURTO, PLAINTIFF,
v.
MEDICAL WORLD COMMUNICATIONS, INC., ROMAINE PIERSON PUBLISHERS, INC. F/K/A ROMAINE PIERSON ACQUISITION CO., JOHN J. HENNESSY, JAMES GRANATO, DANIEL PERKINS, JAMES KING, ROBERT ISSLER, AND EUGENE CONSELYEA, DEFENDANTS.



The opinion of the court was delivered by: Hurley, District Judge

MEMORANDUM AND ORDER

INTRODUCTION

Defendants Medical World Communications, Inc. ("MWC" or the "Company"), Romaine Pierson, Inc., John J. Hennessy, and Robert Issler (collectively, "Defendants") object to the January 18, 2006 Order of Chief Magistrate Judge Michael L. Orenstein which held that Plaintiff Lara Curto ("Plaintiff") had not waived her right to assert the attorney-client privilege and work product immunity concerning documents allegedly retrieved from MWC-owned laptop computers used by Plaintiff during her employment with MWC. For the reasons that follow, Defendants' objections are denied and the January 18, 2006 Order is affirmed in its entirety.

BACKGROUND

I. Factual Background

Plaintiff was employed by MWC from August 1995 to October 24, 2003. MWC has an "E-mail/Computer Privacy Policy," contained within the Employee Handbook, that governs the use of its computer resources. Plaintiff signed an acknowledgment of her receipt and understanding of MWC's Handbook on January 13, 1999, and again on June 5, 2001. The policy provides as follows:

The computers and computer accounts given to employees are to assist them in the performance of their jobs. Employees should not have an expectation of privacy in anything they create, store, send, or receive on the computer system. The computer system belongs to the company and may be used only for business purposes. Employees expressly waive any right of privacy in anything they create, store, send, or receive on the computer or through the Internet or any other computer network. Employees consent to allowing personnel of [MWC] to access and review all materials employees create, store, send, or receive on the computer or through the Internet or any computer network. Employees understand that [MWC] may use human or automated means to monitor use of computer resources. (Decl. of Carol Swoboda, dated Jan. 17, 2006, Ex. A ¶ 5.23.2.)

Beginning in May 2002, Plaintiff worked primarily out of her home office in Glenwood Landing, New York. Plaintiff was assigned Company-owned equipment to use in her home, including Company-owned laptop computers. Specifically, Plaintiff was assigned a Company-owned Macintosh ("Mac") laptop computer until May 2003, when she was told that she would be converting to a Dell laptop computer. As a result, Plaintiff had her files from the Mac laptop transferred to the new Dell laptop. Prior to this transfer, Plaintiff deleted her personal files from the Mac laptop, including notes and e-mails she had sent to her attorneys regarding this action. The Mac laptop was then returned to MWC.

On May 15, 2003, Plaintiff was assigned a Dell laptop computer to use in her home office. Plaintiff used the Dell laptop until she was terminated in October 2003, at which time she was instructed to return the Dell laptop to MWC. Before Plaintiff returned it, she again deleted all personal files and written communications to counsel.

Almost two years later, MWC hired a forensic consultant to inspect the Mac and Dell laptop computers that were assigned to Plaintiff. The consultant was able to restore portions of the computer files and e-mails that had been deleted by Plaintiff. On July 1, 2005, MWC produced these restored documents to Plaintiff's counsel. By letter dated July 8, 2005, Plaintiff's counsel asserted that many of these documents were protected from disclosure by the attorney-client privilege and attorney work product immunity. Plaintiff demanded that the files be returned and not disclosed by Defendants.

By letter dated July 11, 2005, Defendants' counsel requested that Plaintiff provide an explanation as to what documents she was asserting a privilege, the basis of the privilege, when the document was created, and by whom the document was created. After attempts by the parties to resolve this discovery dispute failed, Defendants moved for an order, on August 4, 2005, to determine whether the recovered documents were protected from disclosure.

On September 21, 2005, Magistrate Judge Orenstein held oral argument on the application. He directed Plaintiff to serve and file a privilege log in two weeks and to submit to the Court any documents claimed to be privileged or protected for an in camera inspection. (Sept. 21, 2005 Tr. at 63.) Thereafter, on October 7, 2005, Plaintiff served Defendants with a privilege log and submitted a copy to the Court, together with copies of the allegedly protected documents, which were filed under seal.

In the privilege log, Plaintiff asserted that the following recovered documents should be protected from disclosure under the attorney-client privilege and/or the attorney work product doctrine: (1) a draft memorandum from Plaintiff to John J. Hennessy, MWC's Chief Executive Officer, prepared by Plaintiff and her counsel; (2) a "chronology of events" describing events underlying many of Plaintiff's claims, prepared by Plaintiff and her counsel; (3) drafts of Plaintiff's EEOC complaint prepared by Plaintiff and her counsel; and (4) various e-mails sent amongst Plaintiff and her counsel. Plaintiff is represented in this action by her husband, Andrew Curto, and Lois Carter Schlissel.

After hearing oral argument and reviewing the parties' submissions, Judge Orenstein held, inter alia, that Plaintiff had not waived her right to assert the attorney-client privilege or work product protection as to these documents and directed Defendants to return to Plaintiff all copies thereof. It is this Order, which is discussed in ...


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