Monday, June 27, 2011

Personal E-Mailing from Work and the Attorney-Client Communication Privilege

                Everyone uses e-mail these days, it seems.  Many, use their work e-mail addresses for personal messages.  Because people tend to be less cautious or careful in their electronic communications, e-mail can be a boon for litigators who find the proverbial "smoking gun" e-mail--or, it can be a bane for litigators trying to defend an author of a particular e-mail.  Also, the pervasive use of e-mail has made discovery in litigation extremely expensive because parties (litigators) must mine volumes and volumes of data for information.  Think about it, often one e-mail may mean several versions for and from several different recipients.  For example, when my soccer team manager sends an e-mail about an upcoming tournament, there is a real possibility that it will generate 30-100 e-mails--some on topic, others off topic. 
            So, what happens when a person uses their work e-mail for a communication with their attorney?  Generally, one's communication with their attorney is held inviolate.  The idea behind the attorney-client communication privilege was to allow a client (or potential client) to talk openly and frankly.  Indeed, when a client is not completely forthcoming with the facts, it makes an attorney's job much more difficult because there is a real chance that the attorney will be "blindsided" by information that the client failed to tell the attorney. 
            In Holmes v. Petrovich Dev. Co., 191 Cal. App. 4th 1047 (2011), there was a collision of work e-mail and the attorney-client communication privilege.  In Holmes, an employee was considering a sexual harassment lawsuit against her employer.  In her infinite wisdom, she e-mailed the attorney from her work e-mail address and her work-issued computer.  As more employers have done (and should do), the employer had a written policy advising, among other things, that the company's policy was to have employees use company computers for company business and that the company would monitor its computers for compliance of this policy.  In addition, the company's policy advised that it could and would "inspect all files and messages," and that an employee has no right of privacy with respect to e-mails. 
            The employee ultimately decided to sue her employer for sexual harassment which created an issue as to whether the e-mail to her attorney from the work computer and her work e-mail address was protected from disclosure.  While the court acknowledged that California Evidence Code section 917(b) provided that electronic communications were still protected from the attorney-client communication privilege, it determined that the employee did not have a reasonable expectation of privacy or that her e-mails from work would be confidential.  Ultimately, the court found that the e-mail between her attorney and herself regarding her claim were not privileged:  "This is akin to consulting her attorney in one of defendants' conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by [the employer] would be privileged." 
            Of course, this raises the question regarding whether the employee in Holmes used her personal e-mail account (e.g. gmail, yahoo, etc.) to send the message, but sent it from her company-issued computer?  An earlier New Jersey case found that using one's personal e-mail on a company computer to communicate with an attorney was protected. 
            So, what should you do as an employee? The safest thing is to use a personal computer and e-mail address for personal communications.  If that is not possible, then be sure to understand the employer's policy on this issue before using the employer's equipment and e-mail system for private and personal communications. 
            As an employer, make sure that there is a definite policy covering this issue, that you obtain a written acknowledgement of this policy, and keep reminding employees of this policy.  An employer should make it clear that an employee should not have a reasonable expectation of privacy in his/her e-mails or files on his/her computer. 

Saturday, June 25, 2011

Patent Reform Was Long Overdue

            This week, the House passed sweeping changes to the patent system which was long overdue.  Earlier, the Senate passed a similar bill.  Now, the two bills will most likely be reconciled. 
            One of the biggest changes is to change from a first to invent system to a first to file system.  Most other countries have a first to file system.  While this will benefit bigger companies or those with more resources to file a patent application, it will minimize costly litigation as to who was the first to actually invent a product or procedure.  One of the most common ways in patent litigation to defend against an infringement action is to try to show that the inventor was not the first inventor of the product or procedure.  This means that a patent owner could spend several thousands, if not more, in developing, marketing, and otherwise trying to take advantage of the limited monopoly provided by the United States Government to the inventor/patent owner only to lose it after spending another several thousand dollars trying to overcome a first to invent defense in litigation.  While this may not seem perfect and it skews the playing field to big companies with the resources, it at least provides some certainty regarding patent ownership.  This, in turn, will allow an inventor/patent owner to recoup some of its costs related to the invention by way of license agreements and/or sales of the invention without fear of losing the patent later in litigation based on a finding by a court or jury that the inventor was  not the first to invent the product or procedure. 
            Another key change to the reform is to prevent Congress from diverting millions of dollars in fees collected by the United States Patent and Trademark Office ("USPTO") to other uses.  This change is significant because it will allow (or hopefully allow) the USPTO to process patent applications much quicker.  As it stands now, the average time to process an application is about three years.  Since protection for plant and utility patents is 20 years from the date of the application, an inventor "loses" three years in the patent application process.  Moreover, in that three years, the invention may become obsolete, and therefore, would not allow the inventor to take advantage of the work he/she performed in creating the new product or procedure. As such, this contradicts the purpose of providing a limited monopoly to an inventor in an effort to promote invention and creativity. 
            Given that the last update to the patent system was in 1952, this update is long overdue.  It is not a perfect resolution, but neither is the current system.  It is, however, a better system for the current era.