Farsura v. QC Terme US Corp

Background

This order resolves three discovery disputes. Discovery is the pretrial process through which parties obtain information and documents relevant to the case.

The plaintiff requested an order compelling Stefano QC’s deposition and production of the Stefano QC–White Bridge email. The defendant requested production of the Ortega email and attachment, identified as P013 and P013.1. The defendant also requested production of the Jordan communications identified in Privilege Log 51–54.

Stefano QC and Ortega Requests

The court denied the plaintiff’s request to compel Stefano QC’s deposition and production of the Stefano QC–White Bridge email, substantially for the reasons stated in the defendant’s response.

The court also denied the defendant’s request to compel production of the Ortega email and attachment, substantially for the reasons stated in the plaintiff’s response.

Jordan Communications

The plaintiff asserted that the Jordan communications were protected by New York’s marital privilege, which can protect confidential communications between spouses. The court found that the communications were not about ordinary business matters, so the privilege presumptively applied.

The court explained, however, that the presumption of confidentiality can be overcome when a spouse uses an employer’s email system that third parties could read or monitor, leaving no reasonable expectation of privacy. New York courts evaluate that issue using four factors concerning the employer’s policies against personal use, monitoring practices, third-party access, and notice of those policies.

Here, Ms. Jordan’s employee manual stated that employees had no expectation of privacy, that the employer owned the contents of its information-technology system, and that the employer could access, monitor, review, and disclose email and other system activity. The court concluded that these warnings showed Ms. Jordan had no reasonable expectation of privacy in email sent through the employer’s system. The court therefore ordered production of the Jordan communications between only Mr. Farsura and Ms. Jordan.

The production did not include communications with Mr. Farsura’s attorneys or communications sharing advice from counsel. The order states that the plaintiff did not defend those communications under attorney-client privilege or work-product protection in the response addressed by the court.

Disposition

Magistrate Judge Robert W. Lehrburger denied the request concerning Stefano QC, denied the request concerning the Ortega email and attachment, and granted the request concerning the Jordan communications solely as to communications between Mr. Farsura and Ms. Jordan, excluding communications with attorneys or the sharing of advice of counsel.