275 F.R.D. 154
S.D.N.Y.2011Background
- The Commission seeks production of approximately sixty Bent emails exchanged on September 15–16, 2008; Defendants contend the emails are protected by marital privilege; decision previously reserved and now ripe for resolution.
- Emails were sent using RMCI’s email system and stored on RMCI’s server.
- RMCI had a written Email Policy banning personal use and reserving the right to access employee emails.
- The marital communications privilege requires (1) valid marriage, (2) expressions intended to convey a message, and (3) communications made in confidence; here only the third element is at issue.
- The court applies the Asia Global Crossing four-factor test to determine reasonable expectation of privacy in company emails: policy banning personal use, monitoring rights, third-party access, and notice to employees.
- Bent II sent the emails over RMCI’s system during a highly publicized financial collapse, with the policy emphasizing business use and potential disclosure to regulators.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RMCI’s policy barred personal use and affected confidentiality | Commission argues policy bans personal use, destroying confidentiality | Bent argues policy allowed personal use or was not mandatory | Policy bans personal use; confidentiality not preserved; privilege not applicable |
| Whether RMCI reserved the right to access emails undermining privacy | Commission contends reservation to access negates privacy expectation | Bent contends reservation is not determinative | RMCI reserved right to access; weighs against reasonable expectation of privacy |
| Whether third parties’ access to emails under policy defeats confidentiality | Commission relies on disclosure potential to regulators/courts | Bent contends no third-party access | Policy warns emails may be disclosed; third-party access anticipated; confidentiality not present |
Key Cases Cited
- Pereira v. United States, 347 U.S. 1 (U.S. 1954) (confidentiality prerequisite for communications between spouses)
- Trammel v. United States, 445 U.S. 40 (U.S. 1980) (broadly frames marital privilege against adverse testimony)
- Wolfle v. United States, 291 U.S. 7 (U.S. 1934) (privacy of confidential communications between spouses)
- In re Witness Before Grand Jury, 791 F.2d 234 (2d Cir. 1986) (protects marital confidences; limits privileges)
- United States v. Premises Known as 281 Syosset Woodbury Rd., 862 F.Supp. 847 (E.D.N.Y. 1994) (three prerequisites for marital communications privilege; confidentiality required)
- In re Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr.S.D.N.Y. 2005) (four-factor test for reasonable expectation of privacy in company emails)
- United States v. Acker, 52 F.3d 509 (4th Cir. 1995) (burden on privilege assertion)
- United States v. Long, 64 M.J. 57 (C.A.A.F. 2006) (no privilege where policy permits monitoring)