Emails Between Husband and Wife Are Not Privileged, If Sent from Work Computer – eDiscovery Case Law
January 10, 2013
In United States v. Hamilton, No. 11-4847, 2012 U.S. App. (4th Cir. Dec. 13, 2012), the Fourth Circuit found that the district court had not abused its discretion in finding that e-mails between the defendant and his wife did not merit marital privilege protection because the defendant had used his office computer and his work e-mail account to send and receive the communications and because he had not taken steps to protect the e-mails in question, even after his employer instituted a policy permitting inspection of e-mails and he was on notice of the policy.
This appeal arose after a jury convicted Phillip A. Hamilton, who had been a state legislator, of bribery and extortion under color of official right for using his legislative position to obtain funding for a public university in exchange for employment at the university. Hamilton appealed on several bases, including that the district court had improperly determined that the marital privilege was waived for e-mails sent between Hamilton and his wife. The appeals court reviewed the district court’s determination using an abuse of discretion standard.
E-mails sent between Hamilton and his wife through his work e-mail account spoke of their financial difficulties, his plan to meet with officials at Old Dominion University (“ODU”) to attempt to secure employment, and the salary he hoped to secure. Other messages that Hamilton sent and received (also from his work e-mail) from ODU officials helped show an inextricable connection between his proposed employment with the school and his plan to secure funding for the school.
In reviewing the district court’s refusal to grant marital-privilege protection to e-mails between Hamilton and his wife, the court turned to the Supreme Court’s analysis of the marital privilege in Wolfle v. United States. In Wolfle, the Court pointed out, “‘Communications between . . . spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged.’” But, “‘voluntary disclosure’ of a communication waives the privilege.” The court analogized the circumstances here to the ones in Wolfle in which the Supreme Court deemed the marital privilege waived:
In Wolfle, the Court held that a defendant’s communication with his wife did not come “within the privilege because of [his] voluntary disclosure” of the communication “to a third person, his stenographer.” (citation omitted) The Court explained that, “[n]ormally husband and wife may conveniently communicate without stenographic aid, and the privilege of holding their confidences immune from proof in court may be reasonably enjoyed and preserved without embracing within it the testimony of third persons to whom such communications have been voluntarily revealed.” (citation omitted) Because “[t]he privilege suppresses relevant testimony,” it “should be allowed only when it is plain that marital confidence cannot otherwise reasonably be preserved,” and “[n]othing in this case suggests any such necessity.” (citation omitted)
Likewise, in Hamilton’s case, with e-mail as “the modern stenographer,” Hamilton waived the marital privilege when he used his work e-mail account on his office computer to communicate with his wife, although he was able to “‘conveniently communicate without’” doing so.
Moreover, the court found, Hamilton’s argument that at the time he sent the e-mails to his wife there was no employer-instituted computer usage policy was without merit. The court pointed out that by the time the investigation into Hamilton was underway, such a policy was in place, Hamilton had signed his agreement to it, and Hamilton reaffirmed acknowledgment of the policy “every time he logged onto his work computer” when he “press[ed] a key to proceed to the next step of the log-on process.” The district court found that these facts were sufficient to establish waiver of the marital privilege, and the appellate court agreed. (Nevertheless, the court appeared to say, even if Hamilton had had a reasonable expectation of privacy in his e-mails—before the employer enacted a policy regarding the e-mails, the prior Wolfle analysis precluded any privilege from attaching in these circumstances.)
The appellate court acknowledged the protection deservedly extended to certain marital communications, but ultimately it concluded that this case fell outside those bounds:
Hamilton himself contends that he did not waive the privilege because he “had no reason to believe, at the time he sent and received the e-mails, that they were not privileged,” and he could not waive his privilege retroactively. Amicus, the Electronic Privacy Information Center, adds that it seems “extreme” to “require an employee to scan all archived e-mails and remove any that are personal and confidential every time the workplace use policy changes,” when “employees may not even be aware that archived e-mails exist or know where to find them.” (citation omitted)
In an era in which e-mail plays a ubiquitous role in daily communications, these arguments caution against lightly finding waiver of marital privilege by e-mail usage. But the district court found that Hamilton did not take any steps to protect the e-mails in question, even after he was on notice of his employer’s policy permitting inspection of e-mails stored on the system at the employer’s discretion.
Accordingly, that one may generally have a reasonable expectation of privacy in e-mail, at least before a policy is in place indicating otherwise, does not end our inquiry.
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