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You are the judge in this case. The plaintiff employer
InYourHome filed a reply in opposition to the defendant
Mary Muffin’s request that this Court order plaintiff
employer to (1) return to Muffin all personal email
communications between December 15th, 2019 and
January 7th, 2020, which were left on her companyissued computer laptop when she departed the
premises following her termination by InYourHome,
and, further, that the employer (2) be precluded from
using as evidence at trial any of these emails or any
information contained in these emails in its case against
defendant for breach of contract.
The facts are as follows:
Plaintiff employer InYourHome (‘IYH’) provides homecare nursing and health services. Defendant former
employee, Mary Muffin (‘Muffin’) began working for
IYH in 1994. In 2005, Muffin was promoted to Sales and
Marketing Executive Director for IYH’s Mid-Atlantic
States Region. At the time of her promotion to
Executive Director, Muffin signed a restrictive covenant
agreement with IYH, promising that if and when she left
the company’s employ, for any reason, she would not
work for nor in any manner compete against the
business of IYH for a period of 6 months within the
geographic area over which she was in charge of sales
and marketing, i.e., the Mid-Atlantic States Region. She
further agreed not to solicit any IYH employees to leave
On or about January 5th, 2020, defendant Muffin was
overheard speaking in the company ladies room to her
top assistant about Muffin’s plan to leave IYH and start
up her own home-care nursing company. Muffin
allegedly said, ‘If you leave IYH as well and join me at
my new company, I’ll pay you 10% more salary than
you’re making now.’ The assistant allegedly replied, ‘I’ll
have to think about your offer.’ Muffin said, ‘Okay, I’ll
email you later today with more info about my new
company. Don’t discuss this with anyone though.’
On January 7th, 2020, Muffin was called into the offices
of the President of IYH and informed she was being
terminated. She was told that it was learned she was
planning on quitting IYH, that she had solicited current
IYH employees to leave with her, and that she planned
opening a competing business. She was reminded of
her obligations under the restrictive covenant
agreement not to compete and not to solicit employees
that she signed in 2005.
Between December 15th and January 7th, 2020, the date
on which Muffin was fired, Plaintiff Muffin used her
company-issued laptop to exchange e-mails with her
lawyer through her personal, password-protected, webbased e-mail account. She also wrote personal emails to
two other IYH employees who worked in her
department. Both of these two employees continue to
work for IYH.
Muffin signed a commercial office lease on January 13th,
2020, for premises located in Philadelphia, PA, an
address inside the geographic region identified in the
IYH non-compete clause. IYH learned of this and
contacted its own lawyer for purposes of filing a breach
of contract lawsuit against Muffin.
In anticipation of the breach of contract lawsuit to be
filed by IYH against Muffin, IYH hired a computer
forensic expert to recover all files stored on Muffin’s
assigned laptop, including all stored e-mails which had
been saved automatically on the hard drive. Included in
the emails read by IYH were 2 emails between Muffin
and her IYH assistant dated January 5th and 6th , 2020,
plus another email dated January 5th, 2020, between
Muffin and another IYH employee. The subject of each
of those emails was Muffin’s offer of employment to
those IYH employees at her new company, starting
January 25th, 2020. There also were 2 emails between
Muffin and her attorney dated December 18th, 2019,
discussing the terms of a commercial lease of office
space located in Philadelphia, PA. Muffin’s new
business office, in fact, is located at that address.
IYH turned over to its litigation lawyer all of the forensic
files recovered by its forensic expert from Muffin’s
laptop. IYH's attorneys reviewed the e-mails and used
information culled from them in drafting a civil
complaint against Muffin for breach of the noncompete and no-solicitation contract provisions she
signed in 2005.
After being served with a copy of the breach of contract
complaint filed by IYH and motion for preliminary
injunction, Muffin and her attorney realized that
information from her email communications with her
attorney between December 15, 2019 and January 7th,
2020, had been seen and read by IYH’s attorneys.
In response, Muffin's lawyer demanded that
communications between him and Muffin, which he
considered privileged attorney/client communications,
be identified and returned. Counsel for IYH disclosed
the 2 December 18th email documents but maintained
that the company had the right to review them. Muffin
then sought relief in this court by filing a motion for
protective order requiring IYH’s lawyer to return the
attorney/client emails, as well as the other 3 emails
between herself and the 2 IYH employees, and, further,
requesting that this court enter an order forbidding IYH
from using at trial any information derived from the
content of any of the Muffin emails. Specifically,
defendant Muffin alleges that IYH’s lawyer violated
Rule of Professional Conduct, Rule 4.4(b) by reading and
using privileged attorney/client documents.
Additional background facts:
IYH provided Muffin with a laptop computer to conduct company
business. From that laptop, she could send e-mails using her company
e-mail address; she could also access the Internet and visit websites
through IYH's server. Unbeknownst to Muffin, certain browser
software in place automatically made a copy of each web page she
viewed, which was then saved on the computer's hard drive in a
"cache" folder of temporary Internet files. Unless deleted and
overwritten with new data, those temporary Internet files remained
on the hard drive.
Between December 15th, 2019, and January 7th, 2020, Muffin used her
laptop to access a personal, password-protected e-mail account on
Yahoo's website, through which she communicated with her
attorney and with 2 other IYH employees about her planned new
business . She never saved her Yahoo ID or password on the company
When Muffin left her employment with IYH after being terminated
by the company’s president, she left behind her company office keys,
the company owned laptop, the company issued cell phone, and her
company photo identification card.
In its opposition to Muffin’s motion for the return of her personal
emails and a court order limiting IYH from using at trial any
evidence derived from the content of her personal emails, plaintiff
IYH relies on an Administrative and Office Staff Employee Handbook
that they maintain contains the company's Electronic
Communication policy (Policy).
The proffered Policy states, in relevant part:
The company reserves and will exercise the right to review, audit,
intercept, access, and disclose all matters on the company's media
systems and services at any time, with or without notice.
E-mail and voice mail messages, internet use and communication and
computer files are considered part of the company's business and
client records. Such communications are not to be considered private
or personal to any individual employee.
The principal purpose of electronic mail (e-mail) is for company
business communications. Occasional personal use is permitted;
however, the system should not be used to solicit for outside business
ventures, charitable organizations, or for any political or religious
purpose, unless authorized by the Director of Human Resources.
The Policy also specifically prohibits "[c]ertain uses of the e-mail
system" including sending inappropriate sexual, discriminatory, or
harassing messages, chain letters, "[m]essages in violation of
government laws," or messages relating to job searches, business
activities unrelated to InYourHome, or political activities. The Policy
concludes with the following warning: "Abuse of the electronic
communications system may result in disciplinary action up to and
including separation of employment."
The Rule governing Attorney Professional Conduct, Rule 4. 4, states
in relevant part:
RPC 4.4 Respect for Rights of Third Persons
(a) In representing a client, a lawyer shall not use means that have no
substantial purpose other than to embarrass, delay, or burden a third
person, or use methods of obtaining evidence that violate the legal
rights of such a person.
(b) A lawyer who receives a document or electronic information and
has reasonable cause to believe that the document or information
was inadvertently sent shall not read the document or information or,
if he or she has begun to do so, shall stop reading it. The lawyer shall
(1) promptly notify the sender (2) return the document to the sender
and, if in electronic form, delete it and take reasonable measures to
assure that the information is inaccessible. A lawyer who receives a
document or electronic information that contains privileged lawyerclient communications involving an adverse or third party and who
has reasonable cause to believe that the document or information
was wrongfully obtained shall not read the document or information
or, if he or she has begun to do so, shall stop reading it. The lawyer
shall (1) promptly notify the lawyer whose communications are
contained in the document or information (2) return the document to
the other lawyer and, if in electronic form, delete it and take
reasonable measures to assure that the information is inaccessible. A
lawyer who has been notified about a document containing lawyerclient communications has the obligation to preserve the document.
Plaintiff InYourHome argues that its employees have no expectation
of privacy in their use of company computers based on the company's
Policy. In its briefs before this Court, the company also asserts that by
accessing e-mails on a personal account through IYH's computer and
server, Muffin either prevented any attorney-client privilege from
attaching or waived the privilege by voluntarily subjecting her emails to company scrutiny. Finally, IYH maintains that its counsel
did not violate RPC 4.4 because the e-mails were left behind on
Muffin's company computer —not "inadvertently sent," as per
the Rule —and the Firm acted in the good faith belief that any
privilege had been waived.
Defendant Muffin argues that she intended the e-mails with her
lawyer to be confidential and that the Policy, even if it applied to her,
failed to provide adequate warning that InYourHome would save on
a hard drive, or monitor the contents of, e-mails sent from a personal
password-protected Yahoo account. Muffin also maintains that the
communications with her lawyer were privileged. When the Firm
encountered the arguably protected e-mails, Muffin contends it
should have immediately returned them.
YOU ARE THE JUDGE. You must rule on defendant Muffin’s motion
seeking (1) the return of all of her personal emails and (2) an order
from the court limiting InYourHome’s ability to use any of the
personal emails or their content as evidence at trial in their breach of
contract lawsuit against Muffin. Please write your judicial opinion
here: NO LONGER THAN 450 WORDS.
CASE NUMBER ONE:
Commonwealth v Brundidge,
590 A.2d 302 (Pa. Superior 1991)
The issue presented is whether appellant's constitutional rights were violated when the police
conducted a warrantless search of a jacket that was covered with plastic and hanging in a closet in a
motel room one-half hour after check-out time. We conclude that, although the police entry and search
of the motel room did not infringe on Fourth Amendment rights, the additional governmental intrusion
into appellant's enclosed personal effects violated his constitutionally safeguarded expectations of
privacy. Since we find that the trial court erred in refusing to suppress the evidence uncovered in this
unreasonable *109 search, we reverse the judgment of sentence and remand for a new trial.
In reviewing a trial court's denial of a motion to suppress, we consider the evidence of the prosecution,
and so much of the evidence of the defense as, read in the context of the record as a whole, remains
uncontradicted. Commonwealth v. Kean, 382 Pa.Super. 587, 590, 556 A.2d 374, 375 (1989);
Commonwealth v. Lemanski, 365 Pa.Super. 332, 341-344, 529 A.2d 1085, 1089-90 (1987). Viewed in this
light, the facts of this case are as follows.
On August 25, 1987, appellant Robert L. Brundidge registered at the Greencastle Travelodge Motel for
one night for a party of two: himself and his companion James Jackson. Appellant listed his home
address as Haines City, Florida. Seana Rhodes, the front desk clerk, registered appellant in room 307.
Pursuant to motel policy, Rhodes ordinarily informed motel guests that check-out time is twelve noon.
There was also a sign displayed at the front desk informing the guests that check-out time is twelve
Several motel employees observed appellant and Jackson together on the evening of August 25. They
left the motel at approximately twelve midnight, and did not return that night. The following day, at
approximately twelve noon, Dorcas Sheffield, the executive housekeeper, telephoned room 307
pursuant to usual motel procedure, to determine whether the occupants wished to retain the room for
a second night. When she received no answer, she entered the room to prepare it for the next guest.
She found that the beds had not been slept in the previous night. On one of the beds she found a
diagram of the motel floor plan labelled "front desk" with the handwritten name "James Q. Jackson" on
it. On a table she found several one-inch square clear plastic bags.
*110 Ms. Sheffield was alarmed by the diagram in particular because only two weeks before, a motel
guest had perpetrated an armed robbery of the front desk. She went to the motel manager, Norman
Reed, to report what she found in the room. State Trooper Gary Bopp, an undercover narcotics agent,
was in the manager's office at the time investigating an unrelated matter. The manager and Trooper
Bopp went with Ms. Sheffield to room 307. Trooper Bopp waited outside while Sheffield and Reed
investigated. After Reed determined that no other persons were in the room, he asked Trooper Bopp to
enter. At approximately 12:20 p.m., Trooper Bopp entered room 307. He observed in plain view the
diagram and the small plastic bags, which he recognized as the kind of bags used for packaging small
quantities of controlled substances. He proceeded to search the room. In the only closet, he found a
jacket with a protective plastic bag over it. He searched the jacket, and in a pocket, he found a plastic
bag inside another plastic bag filled with a white powder which was later determined to be 206.6 grams
of pure cocaine. He removed a small sample of the powder for field testing and replaced the bag in the
jacket pocket. Field testing erroneously indicated that the substance was methamphetamine. The
trooper then telephoned the district attorney's office regarding the need for a search warrant, and
telephoned police head-quarters for assistance.
At 12:45 p.m., appellant and Jackson returned to the motel. Shortly thereafter, appellant registered for a
second night. The two were kept under surveillance by state police while Trooper Bopp obtained a
search warrant. At approximately 3:00 p.m., appellant and Jackson attempted to exit the motel. State
police officers ordered them to halt. Appellant stopped, but Jackson attempted to flee and was shot by
an officer. Trooper Bopp returned with search warrants for the motel room and appellant's and
Jackson's cars. He seized the diagram, plastic bags, and bag of cocaine he previously found. Trooper Paul
searched both appellant's and Jackson's cars. From Jackson's car, he seized an *111 empty "Skoal"
chewing tobacco can containing a white residue and a razor blade, an unregistered gun, and three
rounds of ammunition. He found no incriminating evidence in appellant's car.
Appellant was arrested and charged with possession of a controlled substance with intent to deliver
and conspiracy. After his arrest, and after he was given Miranda warnings, appellant stated to police
that the cocaine found in the jacket was not his, but Jackson's. At the time, police were under the
misapprehension that the substance found in the jacket was methamphetamine. He also told police that
he knew Jackson was selling drugs in Hagerstown, and that he was providing him with a place to stay
and transportation to and from Hagerstown.
Appellant and Jackson were tried separately. Appellant filed a pre-trial motion to suppress the cocaine,
which was denied. He was subsequently found guilty of both charges and sentenced to a term of five to
ten years imprisonment. Appellant filed a timely notice of appeal from judgment of sentence.
Appellant raises two issues on appeal: (1) whether the admission of the cocaine into evidence violated
his constitutional rights; and (2) whether there was sufficient evidence presented at trial to sustain his
conviction of both charges. We conclude that appellant's suppression claim has merit and warrants the
grant of a new trial.
In support of his Fourth Amendment claim, appellant argues that he retained a constitutionally
protected privacy interest in both the motel room and all its contents even though he concedes that
check-out time had passed. In so arguing, appellant correctly focuses on what is clearly, in this context,
the fundamental Fourth Amendment concern, i.e., the protection of legitimate privacy interests. We
disagree with appellant's overbroad and unsupported conclusion that, despite the expiration of his
rental period in the motel room, his privacy interests in that room warrant continued constitutional
protection. On the other hand, the *113 extinguishment of appellant's privacy interest in the motel
room did not deprive him of all Fourth Amendment protection for the concealed contents of his
personal effects within that room. Our conclusion is supported by settled constitutional principles and
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause
supported by oath or affirmation, and particularly describing the place to be searched, and the persons
or things to be seized.
Over years of evolving Fourth Amendment jurisprudence, a fundamental precept has emerged and that
is, "the protection of the Fourth Amendment depends not upon a property right in the invaded place
but whether the person who claims the protection of the Amendment has a legitimate expectation of
privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 430, 58 L. Ed. 2d 387
(1978). In order to invoke the protection of the Fourth Amendment, the expectation of privacy which
allegedly has been invaded by government action must be "justifiable," "legitimate" and one which
"society is prepared to recognize as `reasonable'." Katz v. United States, 389 U.S. 347, 360-361, 88 S. Ct.
507, 516, 19 L. Ed. 2d 576 (Harlan, J., concurring). The constitutional legitimacy of an expectation of
privacy is not dependent on the subjective intent of the individual asserting the right. See, e.g., Hudson
v. Palmer, 468 U.S. 517, 525-526 n. 7, 104 S. Ct. 3194, 3199-3200 n. 7, 82 L. Ed. 2d 393 (1984). Indeed, as
Mr. Justice Powell emphasized in his concurring opinion in Rakas, "it is not enough that an individual
desired or anticipated that he would be free from governmental intrusion." Rather, he concluded, "[t]he
ultimate question is whether one's claim to privacy from governmental intrusion is reasonable in li ...