A DePaul University College of Law professor did not waive attorney-client privilege by using the school’s email system to communicate with her personal lawyer, a federal judge has held.
In a written opinion Sunday, U.S. District Judge Matthew F. Kennelly denied DePaul’s motion to compel Sumi Cho to turn over her online communications with her former lawyer concerning her discrimination claims against the university.
Whether an individual waived the attorney-client privilege by using his or her employee email account depends primarily on the employee’s privacy expectations, Kennelly wrote.
Citing cases that included U.S. District Judge Harry D. Leinenweber’s ruling in Goldstein v. Colborne Acquisition Co., 873 F. Supp. 2d 932 (N.D. Ill. 2012), Kennelly wrote four factors are considered in determining an employee’s expectations.
Those factors include whether the employer prohibits employees from using its computers or email system for personal matters, Kennelly wrote.
Quoting a university policy, he wrote employees are allowed to make limited use of the school’s computing resources if that use does not run afoul of any other policy or “otherwise interfere with the legitimate education and business purposes of DePaul.”
Another factor that would lead Cho to have reasonable expectations of privacy is DePaul’s policy not to routinely monitor employees’ use of the university’s computers or email system, Kennelly wrote.
“And notices that appear upon log-in state that any access or monitoring would take place only in accordance with applicable laws and legitimate business purposes,” he wrote.
“This would lead a reasonable employee in Cho’s position to believe that her emails would not be monitored.”
Still another factor supporting Cho’s expectations of privacy is a DePaul policy that — as stated by the notices that appear when a user logs in — gives the university access to employees’ email accounts “only in accordance with applicable laws” and “for legitimate business purposes,” Kennelly wrote.
And DePaul, he wrote, notified Cho and other employees of the policies concerning the use of the university’s computers and email system.
“For these reasons, the Court concludes that Cho did not waive the attorney-client privilege regarding her communications with her attorney using the university’s email system,” Kennelly wrote.
In December 2018, Cho filed a lawsuit accusing DePaul of violating the Equal Pay Act and Title VII of the Civil Rights Act of 1964 by paying her a lot less than two male professors despite her “significant record of teaching, research and service.” Sumi Cho v. DePaul University, No. 18 C 8012.
The suit was assigned to Kennelly.
Six days later, Cho filed a second suit accusing DePaul of breach of contract under Illinois law as well as discrimination and retaliation in violation of Title VII and 43 U.S.C. Section 1981. Sumi Cho v. Jennifer Rosato Perea, et al., No. 18 C 8117.
That suit was assigned to U.S. District Judge John Z. Lee.
In May 2019, the Executive Committee of the U.S. District Court for the Northern District of Illinois directed Kennelly to preside over coordinated pretrial discovery proceedings in both cases.
In his opinion Sunday in the Equal Pay Act suit, Kennelly rejected the argument that Cho waived the attorney-client privilege by sharing communications with her lawyer with fellow law professor Terry J. Smith.
Smith was fighting an attempt by DePaul to fire him for purportedly violating a university rule by engaging in intimidating and extremely aggressive behavior toward his colleagues.
Smith filed his own suit accusing the university of retaliating against him because of his advocacy for racial diversity in the law school and his criticism of race discrimination.
Smith and the university later reached a settlement in the case.
Kennelly noted both Cho and Smith were represented by Fitzgerald T. Bramwell of the Law Offices of Fitzgerald Bramwell.
And the university had accused Cho of joining with Smith in violating the rule prohibiting intimidating and aggressive behavior, Kennelly wrote.
“Because DePaul accused them of acting in concert to violate its policies and attempted to sanction them for this,” he wrote, “Cho and Smith shared a common legal interest, making their communications with each other and their attorney privileged.”
But Kennelly directed Cho to turn over a January 2019 communication with Margaret Montoya concerning Montoya’s potential testimony in the disciplinary proceeding.
Cho had attached a draft of notes Bramwell prepared after interviewing Montoya.
Kennelly held Cho waived work product protection by sending these materials to a third party.
“This disclosure, to a witness not under Cho’s control, substantially increased the opportunity for a potential adversary to obtain the information: under the circumstances, Cho reasonably would understand that Montoya, a witness, would be questioned by DePaul about communications with Cho or her attorney,” Kennelly wrote.
The lead attorney for Cho is Margaret A. Angelucci of Asher Gittler & D’Alba Ltd.
The lead attorney for DePaul is Brian P. Paul of Michael Best & Friedrich LLP.
Neither the attorneys nor a spokesperson for DePaul could be reached for comment.