As a general matter, employees of corporations are aware that e-mails sent in the course of business may be read by IT support technicians for the company. But did you know that personal e-mails sent on the job could come back to bite you in a grand jury investigation? Henry Nicholas wasn’t – at least not until recently. Nicholas, the billionaire co-founder and ex-CEO of Broadcom, is painfully aware that not even the marital privilege can protect incriminating e-mails sent from a work e-mail account.
In 2002, Dr. Nicholas sent an e-mail from his Broadcom account to his estranged wife. The e-mail contained admissions of drug use, various misrepresentations in his capacity as CEO of Broadcom, and other misconduct. During the grand jury investigation, nearly five years after Dr. Nicholas sent the e-mail, the government became aware of the e-mail and the stock option granting practices at Broadcom when an IT technician at Broadcom discovered the e-mail, leaked it to the press, and turned it over to the government. After Dr. Nicholas learned that the government had a copy of the e-mail, he demanded that the government return it, arguing that it was protected by the marital privilege. The government refused, and the parties requested that the district court resolve the dispute. The district court held that the e-mail was not privileged because Dr. Nicholas had no reasonable expectation of privacy in the e-mail and because he failed to take reasonable steps to secure its confidentiality. In re Grand Jury Investigation, Order at 2 (C.D. Cal. Sept. 25, 2007). Dr. Nicholas appealed the ruling to the Ninth Circuit Court of Appeals.
The Ninth Circuit vacated the district court's order, and held that the e-mail was protected by the marital privilege, but did not require that the government return the document to Dr. Nicholas. The Ninth Circuit's order only precluded disclosure of the e-mail in the "context of the grand jury proceedings to the full extent of the marital privilege." In re Grand Jury Investigation, Order at 2, (C.D. Cal. May 20, 2008). On June 4, 2008, the grand jury returned an indictment against Dr. Nicholas and his co-defendant for an alleged conspiracy related to stock option granting practices at Broadcom. Shortly after the indictment, the e-mail was leaked to the Orange County Register by an IT technician at Broadcom. The newspaper ran a story with damaging excerpts from the e-mail.
In U.S. v. Nicholas, __F.Supp.2d__, 2008 WL 5546721 (C.D.Cal. Dec. 29, 2008), Dr. Nicholas moved to preclude the government from disclosing the contents of the email to his co-defendant and from using the privileged email for cross-examination or impeachment of Dr. Nicholas should he testify at trial. The district court denied his motion, and held that the email (1) may be used at trial; (2) must be disclosed to the co-defendant; and (3) may be used for cross-examination and impeachment purposes at trial.
The message? Work e-mail accounts should be used for work purposes. Personal e-mails – even those that are protected by a privilege - can have serious implications down the road.