Internet Law Update

Tuesday, July 25, 2006

Employee Does Not Waive Attorney Client Privilege Simply By Communicating Over Company Email System

This week's Internet Law Update features an extensive analysis of In re: Asia Global Crossing, Ltd., et al., 322 B.R. 247 (Bankr. S.D.N.Y., March 21, 2005).

A Bankruptcy Court Judge holds that the use of a company’s e-mail system by an employee to send personal e-mails to the employee’s personal counsel does not, without more, waive any attorney client privilege in such communications. Whether a waiver had occurred must instead be resolved by examining the employee’s subjective and objective expectations that the communications would be confidential. In analyzing this question, Courts should look for guidance to cases that address an employee’s privacy rights in e-mail sent over company e-mail systems, which hinge on the resolution of a similar question -- the reasonableness of an employee’s expectation of privacy in such e-mails. Issues of fact as to the existence and application of company computer usage policies, and whether employees were warned that the Company could inspect e-mails sent over the company’s system, prevented the Court from resolving the issue at this time.

The Court further held that any privileges attendant to certain additional e-mails between company employees and their personal counsel had been waived by their voluntary transmission of such e-mails both to counsel representing the company, and to a consultant rendering services to the company.

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Thursday, July 20, 2006

Employee Does Not Waive Privilege By Communicating Via Company Laptop

This week's Internet Law Update features an extensive analysis Lara Curto v. Medical World Communications, Inc., et al., 03cv6327 (DRH)(MLO)(E.D.N.Y. May 15, 2006).

Affirming the decision of the Magistrate Judge, the District Court holds that an employee did not waive any attorney client or work product privileges that may exist in various email communications with her personal counsel transmitted to and from the employee’s personal AOL email account by using a company laptop to send them from her home. Plaintiff’s employer had obtained these emails by “restoring” deleted files stored on the hard drives of these company laptops. The Court reached this result notwithstanding the fact that the Company had a computer usage policy, of which the employee was aware, that warned employees that they had no right of privacy in Company computer equipment, the contents of which could be inspected by the Company.

To view the full story, visit the Internet Library of Law and Court Decisions, http://www.phillipsnizer.com/internetlib.htm, or sign-up for Internet Law Update, a free e-newsletter read by over 2500 subscribers providing in-depth analysis of current court decisions of interest to those who do business on the Internet. You can sign-up at http://www.phillipsnizer.com/library/caseupdates.cfm

Thursday, July 13, 2006

CDA Immunizes Message Board Operator That Edits Posts From Defamation Claim

This week's Internet Law Update features an extensive analysis Anthony DiMeo, III v. Tucker Max, Civil Action No. 06-1544, (E. D. Pa., May 26, 2006). There, the court held that the Communications Decency Act immunizes a message board operator from defamation claims arising out of posts appearing on his boards that were authored by others. This immunity extended to the defendant operator notwithstanding plaintiff’s claim that the defendant operator edits posts that appear on his boards, and selects posts that will either be published thereon, or removed therefrom. The Court accordingly dismissed with prejudice defamation claims asserted by plaintiff Anthony DiMeo III arising out of offensive postings that appeared on defendant’s message boards.

The Court also dismissed plaintiff’s claim that defendant violated the criminal statute 47 U.S.C. § 223 (a)(1)(C), which prohibits use of a telecommunications device anonymously to harass another. Defendant neither acted anonymously – his name appeared both in the domain name and title of the message boards found on his website – nor did he use a telecommunications device, within meaning of the statute, in operating his web site.

To view the full story, visit the Internet Library of Law and Court Decisions, http://www.phillipsnizer.com/internetlib.htm, or sign-up for Internet Law Update, a free e-newsletter read by over 2500 subscribers providing in-depth analysis of current court decisions of interest to those who do business on the Internet. You can sign-up at http://www.phillipsnizer.com/library/caseupdates.cfm

Wednesday, July 12, 2006

NY Applies One Year Statute Of Limitations To Defamatory Posts


This week's Internet Law Update features an extensive analysis of Rare 1 Corp. v. Moshe Zwiebel Diamond Corp., Index No. 117595/05 (Sup. Ct. N.Y. Co., July 5, 2006). The New York Supreme Court holds that the ‘single publication’ rule applies to allegedly defamatory statements posted about plaintiff on a subscription web site accessible only by the site’s members. As those statements were posted over one year prior to the commencement of plaintiff’s action charging defendant with defamation as a result of their publication, the Court held such claims barred by the applicable statute of limitations, and dismissed plaintiff’s suit.

To view the full story, visit the Internet Library of Law and Court Decisions, http://www.phillipsnizer.com/internetlib.htm, or sign-up for Internet Law Update, a free e-newsletter read by over 2500 subscribers providing in-depth analysis of current court decisions of interest to those who do business on the Internet. You can sign-up at http://www.phillipsnizer.com/library/caseupdates.cfm

Friday, July 07, 2006

Apple Barred From Obtaining Source Of Blog's Article


This week's Internet Law Update features an extensive analysis of O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 2006 WL 1452685 (Cal. App. , 6th Dist., May 26, 2006). Reversing the court below, the California Court of Appeals holds that the Stored Communications Act prohibits an ISP that hosted a blog’s email account from disclosing e-mails sent to the blog in response to a subpoena issued in a civil litigation. The
subpoena sought production of e-mails that would permit Apple Computer (“Apple”) to identify the individual(s) who transmitted trade secret information about an as yet unreleased Apple product to the blog/website Power Page, which information was the source of articles Power Page subsequently published on its blog/website.

The Court further held that petitioners, who acted as publishers of, and/or editors or reporters for, the news blogs that published the stories at issue about this Apple product, were entitled to a protective order against their disclosure of the confidential sources of their stories. Notwithstanding Apple’s claim that the information petitioners received from these services constituted trade secrets disclosed in violation of confidentiality agreements each of its employees had signed, the Court held such disclosure barred by both California’s Reporter’s Shield Law and the First Amendment. The Court held that the Shield Law, which prohibits a court from holding in contempt a publisher, editor or reporter of “a newspaper, magazines or other periodical publication” for failing to disclose the source of a published story, protected petitioners, publishers and/or reporters of news blogs, from having to disclose the sources of the stories at issue. The First Amendment similarly provided protection, given Apple’s failure to fully exhaust other avenues of disclosure before pursuing discovery from petitioners.

To view the full story, visit the Internet Library of Law and Court Decisions, http://www.phillipsnizer.com/internetlib.htm, or sign-up for Internet Law Update, a free e-newsletter read by over 2500 subscribers providing in-depth analysis of current court decisions of interest to those who do business on the Internet. You can sign-up at http://www.phillipsnizer.com/library/caseupdates.cfm