Tuesday, September 18, 2007, 9/18/2007 04:54:00 PM

Don’t Plot Against Your Soon-To-Be Former Employer on Your Work Computer

An interesting lesson arises from a new opinion in a trade secrets case from the Supreme Court of Virginia, Banks v. Mario Industries of Virginia, Inc., 2007 WL 2683509 (Va. Sept. 14, 2007).

The scenario was the usual one, an employee leaves his employer, Mario Industries, and goes into competition. Just prior to leaving though, he prepared a confidential pre-resignation memorandum for the purpose of seeking legal advice from his lawyer. The rub is he did it on his Mario computer.

According to the court, “[p]ursuant to Mario's employee handbook, Mario permitted employees to use their work computers for personal business. However, Mario's employee handbook provided that there was no expectation of privacy regarding Mario's computers. Cook created the pre-resignation memorandum on a work computer located at Mario's office. Cook printed the document from this computer, and Cook sent it to his attorney for the purposes of seeking legal advice. Cook then deleted the document from the computer. Mario's forensic computer expert, however, retrieved the document from the computer's hard drive.”

The court held this wasn’t privileged based on its earlier ruling in Clagett v. Commonwealth, 472 S.E.2d 263 (Va. 1996), that “the [attorney-client] privilege is waived where the communication takes place under circumstances such that persons outside the privilege can overhear what is said.”

Therefore, the fact that it could be retrieved, meant that it was no longer privileged (and thus properly admitted into evidence).

The lesson: use your home computer for communications with your counsel.

(By the way, this earlier post links to a case from last year where the federal court in the Eastern District of New York ruled just the other way.)

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