In re Asia Global Crossing, Ltd.
United States Bankruptcy Court for the Southern District of New York
March 21, 2005, Decided
Chapter 11, Case No. 02 B 15749(SMB) and 02 B 15750 (SMB), (Jointly Administered)
[*251] MEMORANDUM DECISION AND ORDER REGARDING WAIVER OF PRIVILEGES
STUART M. BERNSTEIN
Chief United States Bankruptcy Judge
E-mails are a widespread method of communication, and employees sometimes use the employer's e-mail system to communicate with third parties about personal matters. The main question raised by the current motion is whether an employee's use of the company e-mail system to communicate with his personal [**2] attorney destroys the attorney-client, work product or joint defense privileges in the e-mails where the employee and his former employer's trustee have become adversaries.
Assuming a communication is otherwise privileged, the use of the company's e-mail system does not, without more, destroy the privilege. Furthermore, except for the Troxell Documents described below, the disputed or incomplete factual record prevents the Court from deciding as a matter of law that a waiver of any privileges occurred.
At all relevant times prior to bankruptcy, Asia Global Crossing, Ltd. and Asia [*252] Global Crossing Development Co. (collectively "Asia Global" or the "debtor") were pan-Asian telecommunications carriers. The following five individuals (the "Insiders") served as the principal officers of Asia Global:
Chief Executive Officer
John M. Scanlon
Chief Financial Officer
Vice President and General
Charles F. Carroll
Vice President and General
Manager of Business Operations
Assistant General Counsel
[**3] Asia Global filed a chapter 11 petition on November 17, 2002. The case was converted to chapter 7 on June 10, 2003, and Robert L. Geltzer was appointed to act as chapter 7 trustee.
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322 B.R. 247 *; 2005 Bankr. LEXIS 415 **
In re : ASIA GLOBAL CROSSING, LTD., ET AL., Debtors.
Subsequent History: As Amended, March 23, 2005.
Disposition: Court's findings regarding claims of waiver of privileges against disclosure of documents and emails.
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