The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
On September 8, 2010, the court received by facsimile a letter from Frederick Fanelli, Esquire, attorney for Dennis Campbell. In his letter, Attorney Fanelli alerted the court that his client intends to assert his attorney-client privilege at trial if asked about the contents of a five-page document that Campbell prepared for Attorney Fanelli in preparation of his defense of then-anticipated criminal charges.
On September 10, 2010, the court received a letter by e-mail from Michael Schwartz, Esquire, attorney for the Defendant in this case, Joseph Nagle. Attorney Schwartz stated that he believes Campbell never intended for his memo to be a confidential communication, and, thus, it is not subject to the attorney-client privilege, or, if the document is privileged, the crime-fraud exception applies to overcome the privilege. Both Attorney Fanelli's and Attorney Schwartz's letters were docketed, under seal, as Document number 91. On September 13, 2010, the court held a conference call involving counsel for Campbell and Nagle as well as the Government. On September 27, 2010, the court held an evidentiary hearing as to whether Campbell retained his privilege in the communication in question. All parties were present at that hearing and were represented by counsel.
Because the court writes primarily for the parties, the court will not go into elaborate detail about the facts underlying the felony information against Campbell and his subsequent guilty plea, or the charges underlying the indictment of Nagle.
The document in question is a five-page chronology created by Campbell on or about December 3, 2007, and last modified on December 6, 2007, which ironically is the date that Campbell's employment with Schuylkill Products, Inc. ("SPI") ended. The document was prepared by Campbell at the request of his attorney, and generally summarizes a chronology of his employment with SPI and the events giving rise to the criminal charges against him. Campbell could not remember whether he initially created the document on his work computer during working hours, or whether he created it at home on his wife's computer and then transferred it to his work computer. In any event, it is undisputed that by December 3, 2007, the document was saved as a Microsoft Word document titled "DFC Chronology" on Campbell's SPI-owned laptop in the following location: C:\Documents and Settings\DCampbell\Desktop\dfc\marikina plan. (See Def.'s Hr'g Ex. 3., screen shot.) Because of its location, it is apparent that this document was not saved on SPI's server, but instead was saved on the laptop's hard drive, thus making it accessible to others only if it was viewed from Campbell's computer.
Campbell testified at the hearing that his laptop was password protected, but he could not be sure whether he had given others his password. He did acknowledge, however, that there were times that Denise Wiederhold, an administrative assistant at SPI, would access his computer to look for documents that he created, and, thus, that she must have had his password. According to both Campbell and Ms. Wiederhold, when she was asked to access Campbell's computer, she went only to the places directed to her by Campbell and that she only accessed the computer when asked to do so.
In addition to Campbell and Ms. Wiederhold, Nagle also testified at this hearing. Each of these witnesses acknowledged that they used their SPI-owned computers for both work and personal purposes, and that SPI had no policy prohibiting them from doing so. However, Nagle presented the testimony of George Paul, SPI's former human resources manager. Mr. Paul testified to and authenticated Defendant's Exhibit 1, which is a document titled "Computer & Internet Usage Policy." (See Def.'s Hr'g Ex. 1.) In relevant part, this policy states:
Employee's Internet and e-mail activity is NOT private.
Such activity may be monitored and reviewed periodically by authorized individuals to perform normal system maintenance, to determine whether anyone outside SPI has gained unauthorized access to the systems and to ensure employees' compliant with SPI's policies regarding such systems. (Id.) Mr. Paul testified that each employee with access to a computer was given a copy of this policy at the time of its creation, or in the event that they were hired later, at the time of their hire. They were asked to sign it and a copy was to be maintained in the employee's personnel file. Mr. Paul testified that it was up to the department managers to ensure that the policy was signed. However, he testified that he did not know how the policy was enforced.
Despite this testimony, Campbell, Nagle and Wiederhold each testified that they were not aware of the written policy and none of them could be sure whether they had ever signed such a policy. There was no evidence produced at the hearing that a signed, or unsigned, copy of the policy was in any of these individuals' personnel files. In fact, Nagle testified that he only recently became aware of the existence of this written policy despite the fact that he was the President and CEO of SPI.*fn1
Campbell was fired from SPI on December 6, 2007. After his termination, he was escorted to his office by Mr. Paul so that he could gather his personal effects. Campbell testified that he informed Mr. Paul that he wanted to get some information off of his computer, specifically his Microsoft Outlook contacts, and his "DFC file." Campbell testified that he was told by Mr. Paul that he was not allowed to do this at that point, but that Mr. Paul would talk to Nagle and get back to him. Campbell says that he called Mr. Paul after his termination, but that Mr. Paul never responded to his call. Mr. Paul relayed a slightly different version of events. He acknowledges that Campbell asked to get some information off of ...