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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)

Opinion

 [*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.

BACKGROUND

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: 1

Office

officer

Chief Executive Officer

John M. Scanlon

Chief Financial Officer

Stefan Riesenfeld

Vice President and General

Counsel

Charles F. Carroll

Vice President and General

Manager of Business Operations

Scott Ballantyne

Assistant General Counsel

Monte Baier

 [**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.

A. The Documents at Issue

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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.

CORE TERMS

e-mail, Documents, Declaration, communications, confidential, privileged, hard copy, messages, attorney-client, privacy, monitoring, waived, disclosure, memorandum, employees, files, policies, parties, expectation of privacy, subpoenas, asserting, reasonable expectation of privacy, compel production, work product, users, no reasonable expectation, objectively reasonable, office computer, chain, warn

Bankruptcy Law, Procedural Matters, Adversary Proceedings, General Overview, Evidence, Rule Application & Interpretation, Civil Procedure, Federal & State Interrelationships, Federal Common Law, Privileges, Preliminary Considerations, Bankruptcy, Case Administration, Examinations of Debtors, Attorney-Client Privilege, Scope, Discovery & Disclosure, Discovery, Subpoenas, Waiver, Legal Ethics, Client Relations, Duties to Client, Duty of Confidentiality, Computer & Internet Law, Civil Actions, Invasion of Privacy, Criminal Law & Procedure, Search & Seizure, Expectation of Privacy, Government Privileges, Official Information Privilege, Reports Privilege, Constitutional Law, Fundamental Rights, Scope of Protection, Torts, Invasion of Privacy, Intrusions, Labor & Employment Law, Employee Privacy, Business & Corporate Compliance, Computer & Internet Law, Privacy & Security, Company Communications, Attorneys, Counsel, Right to Counsel, Privileged Communications, Work Product Doctrine, Methods of Discovery, Inspection & Production Requests, Opinion Work Product, Waiver of Protections, Elements, Contracts Law, Types of Contracts, Joint Contracts