Panel Finds Privilege Does Not Apply to Ex-GC’s Laptop

Posted June 8th, 2017.

As It Appeared On
NY Law Journal

Jason Grant

The Appellate Division, First Department’s decision Tuesday in Miller v. Zara USA, 155512/15, modifies a 2016 ruling in which it issued a protective order preventing Zara from accessing more than 100 “personal documents” created by plaintiff Ian Jack Miller on a company laptop after he was terminated.

Miller, who is gay and Jewish, brought a $40 million employment discrimination suit against fashion retailer Zara and two of its executives in June 2015. He was terminated two months prior and refused to return his laptop, and even used it to email a lawyer who helped him sue Zara.

Manhattan Supreme Court Justice David B. Cohen found the files in question were not relevant to the case’s merits and were created after Miller had left. But Justices Dianne Renwick, Rosalyn Richter, Paul Feinman, Judith Gische and Marcy Kahn appeared to disagree.

“Plaintiff … lacked the reasonable assurance of confidentiality that is foundational to attorney-client privilege,” the panel said. “Zara’s employee handbook, of which plaintiff, Zara’s general counsel, had at least constructive knowledge restricted use of company-owned electronic resources, including computers, to ‘business purposes’ and proscribed offensive uses.”

But in regard to attorney work product, the panel noted that Zara never actually viewed documents stored on the laptop. “[Plaintiff’s] use of [Zara’s computer] for personal purposes does not, standing alone, constitute a waiver of attorney work product protections.”

David Tracey, an associate at Sanford Heisler Sharp in Manhattan represented Miller. He could not be reached for comment. David Warner, a shareholder in Littler Mendelson’s New York office represented Zara. Brendan Riley, a spokesman for Zara USA, declined to comment.

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