Doe v. George Wash. Univ.

573 F.Supp.3d 88

Jane DOE 1, et al., Plaintiffs,

v.The GEORGE WASHINGTON UNIVERSITY, et al., Defendants.

Civil Action No. 18-1391 (RBW)

United States District Court, District of Columbia.

Signed November 19, 2021

Brendan James Klaproth, Klaproth Law PLLC, Washington, DC, Jesse Colin Klaproth, Klaproth Law PLLC, Philadelphia, PA, for Plaintiffs.

Daniel I. Prywes, Michelle Erin Litteken, Morris, Manning & Martin, LLP, Washington, DC, for Defendants George Washington University, Kyle Renner.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The plaintiffs bring this civil action, using the pseudonyms Jane Does 1 to 5, against George Washington University ("GW") and Kyle Renner, a GW employee being sued in his capacity as GW's General Operations Manager and the plaintiffs’ supervisor (collectively, "the defendants"), alleging violations of the District of Columbia's Human Rights Act, D.C. Code §§ 2-1401–1404.04 (2001), see First Amended Complaint [a]nd Jury Demand ("Am. Compl.") ¶¶ 116, 123, 133, 140; negligent training, supervision, and retention with respect to GW only, see id. ¶ 145; and violations of Title IX of the Education Amendments Act of 1972 ("Title IX"), 20 U.S.C. §§ 1681 – 88, see id. ¶¶ 149–50, 160. See also Doe 1 v. George Wash. Univ., 369 F. Supp. 3d 49 (D.D.C. 2019) (Walton, J.) (" Doe 2019") (granting in part and denying in part the defendants’ motion to dismiss).

On February 26, 2020, while discovery was being conducted, the plaintiffs filed a motion to enforce the protective order entered by the Court in this case, requesting that the Court "issue an order directing [the d]efendants to destroy all e[-]mails in their possession containing attorney-client communications between the [p]laintiffs and their lawyers." Motion to Enforce Protective Order ("Pls.’ Prot. Order Mot.") at 1, ECF No. 49. In response, on August 17, 2020, the Court issued a Memorandum Opinion ("the Court's August 17, 2020 Memorandum Opinion"), concluding that "the plaintiffs, with the exception of Jane Doe 1, waived the attorney-client privilege when they communicated with their attorneys through their GW-issued e-mail accounts." Doe 1 v. George Wash. Univ., 480 F. Supp. 3d 224, 230 (D.D.C. 2020) (Walton, J.) (" Doe 2020"). Accordingly, the Court denied the motion as to Jane Does 2 through 5, and granted the motion as to Jane Doe 1. See Order at 1 (Aug. 17, 2020), ECF No. 61.

On September 15, 2020, the plaintiffs¹ filed a motion for reconsideration or, in the alternative, for certification for an interlocutory appeal. See Plaintiffs’ Motion for Reconsideration, or in the Alternative, Motion to Certify for an Interlocutory Appeal ("Pls.’ Recon. Mot.") at 1, ECF No. 64. The plaintiffs ask the Court to either (1) "revise its [August 17, 2020 Memorandum] Opinion and Order to find that the e[-]mail communications sent and received by [the p]laintiffs with their attorney through their [GW]-issued e[-]mail are privileged communications, are not relevant, and must be destroyed by [the d]efendants[,]" or (2) "certify[ ] for interlocutory appeal the Court's August 17, 2020 [Memorandum Opinion and O]rder" and any "order denying the [p]laintiffs’ [m]otion for [r]econsideration." Id. Upon careful consideration of the parties’ submissions,² the Court concludes that it must deny the plaintiffs’ motion for reconsideration and the plaintiffs’ motion in the alternative for certification for an interlocutory appeal.

I. BACKGROUND

The Court previously described the relevant factual background in detail, see 369 F. Supp. 3d at 56–62, and therefore will not reiterate that information again here. The Court will, however, briefly discuss the procedural posture pertinent to the resolution of the motion addressed by this Opinion.

Discovery in this case began on October 8, 2019. See Order at 1 (Oct. 9, 2019), ECF No. 37. Pursuant to the Court's Initial Scheduling Order, the parties were required to "serve document requests on or before November 15, 2019." Id. During the process of responding to the plaintiffs’ "[f]irst [r]equest for [p]roduction of [d]ocuments[,]" the defendants "came across ... e[-]mails exchanged between [the p]laintiffs and their counsel through [GW's] [ ] e[-]mail system." 480 F. Supp. 3d at 225 (internal quotation marks omitted). "On February 19, 2020, counsel for the defendants notified the plaintiffs’ counsel that the defendants [had] located the e-mail[s.]" Id. "[I]n response, the plaintiffs’ counsel asserted the attorney-client privilege, and requested that counsel for the defendants destroy the e-mail[s] [ ] identified by the defendants that were between the plaintiffs and their counsel[.]" Id. (internal quotation marks omitted). After "the defendants refused to destroy the e-mail[s] [ ] absent a Court order, the plaintiffs filed their motion to enforce the protective order[.]" Id. (citations omitted). See generally Pls.’ Prot. Order Mot.

In their motion, the plaintiffs argued that the protective order entered in this case, see Protective Order at 1 (Nov. 5, 2019), ECF No. 41, and Rule 4.4 of the District of Columbia Rules of Professional Conduct required the defendants to destroy the e-mails because they were protected by the attorney-client privilege. See Pls.’ Prot. Order Mot. at 4–5. In response, the defendants argued that the e-mails were not protected by the attorney-client privilege because the "[p]laintiffs could not have reasonably expected that e[-]mails sent through the [GW] e[-]mail system would be confidential, especially given [GW's] e[-]mail policy stating otherwise," and (2) the "[p]laintiffs’ counsel should have known not to communicate attorney-client information over [GW's] e[-]mail system if he desired confidential treatment." Defs.’ Prot. Order Mot. Opp'n at 1.

In its August 17, 2020 Memorandum Opinion, the Court determined that, in the context of this case, like "the context of e-mail communications between an employee and his [or her] lawyer exchanged through the employer's e-mail system, ... ‘the question of privilege comes down to whether the intent to communicate in confidence was objectively reasonable.’ " 480 F. Supp. 3d at 226 (quoting In re Asia Global Crossing, Ltd., 322 B.R. 247, 258 (Bankr. S.D.N.Y. 2005) ). The Court applied the following factors from In re Asia Global Crossing, Ltd., which have been broadly adopted by courts considering similar issues:

(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee's computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?

322 B.R. at 257. See 480 F. Supp. 3d at 226.

Regarding the first two Asia Global Crossing factors, the Court determined that, although "the plaintiffs are correct that GW placed no caveat on the use of the school e-mail address for personal use[,]" "GW's e-mail policy cautions students that individuals have no right of personal privacy with respect to e-mail messages or attachments they send or receive using the GW e-mail system," and "GW's e-mail policy provide[s] that it may search, review, monitor, or copy any e-mail sent to or from a GW e-mail account for approved purposes only, including without limitation, gathering information potentially relevant to legal claims by or against GW." Id. at 227 (internal quotation marks and alterations omitted). "As to the third factor—whether third parties have a right of access to the e-mails[,]" the Court concluded that "GW's e-mail policy is silent." Id. However, "[r]egarding the fourth and final factor—whether the plaintiffs were aware of GW's e-mail monitoring policy[,]" the Court determined that the plaintiffs "accepted the terms and conditions of GW's Information Security Policy that specifically references the e-mail policy, and therefore, these plaintiffs were put on notice of GW's policy of monitoring GW-issued e-mail accounts[.]" Id. (internal quotation marks, citations, and alterations omitted). Accordingly, the Court concluded that "the plaintiffs, with the exception of Jane Doe 1,^{[3 ]} did not have an objectively reasonable expectation of privacy in their e-mail communications with their attorneys that were sent and received through their GW-issued e-mail accounts[.]" Id.

The Court also rejected the plaintiffs’ arguments that the defendants were obligated to delete the e-mails due to either the clawback provision in the Protective Order in this case or Rule 4.4 of the District of Columbia Rules of Professional Conduct. See id. at 229 (concluding that the clawback provision in the Protective Order did not apply because the provision "has no bearing on attorney-client communications that were made between a party's counsel and his clients before the lawsuit was filed and that were not exchanged between the parties’ counsel during the discovery process" (alterations omitted)); id. (concluding that Rule 4.4 was inapplicable because "whether the privileged status of a writing has been waived is a matter of law beyond the scope of the [Rules of Professional Conduct]" (alterations omitted)). Therefore, concluding "that the plaintiffs, with the exception of Jane Doe 1, waived the attorney-client privilege[,]" the Court granted the plaintiffs’ motion as to Jane Doe 1, but denied the motion as to Jane Does 2 through 5. See id. at 230.

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 54(b), any order or decision that does not constitute a final judgment "may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities." Fed. R. Civ. P. 54(b). Although a "district court has ‘broad discretion to hear a motion for reconsideration brought under Rule 54(b),’ " Univ. of Colo. Health at Mem'l Hosp. v. Burwell, 164 F. Supp. 3d 56, 62 (D.D.C. 2016) (quoting Isse v. Am. Univ., 544 F....