E-mails to and from an in-house attorney that discuss a litigation hold on documents can be protected by attorney-client privilege, if the e-mails involve legal advice. In October 2009, the plaintiff employee, Barry Buxbaum, was forced to resign, after nearly 30 years of work at St. Vincent's and its predecessors, because sexually explicit materials allegedly were found on a work computer. Chief Financial Officer Robert Trojanowski allegedly resigned at the same time. Buxbaum's replacement allegedly had "questionable" credentials and was younger. Buxbaum sued, alleging the official reason for his forced resignation constituted a pretext for age discrimination. Buxbaum sought to compel the deposition of a former worker, Pamela Tarulli, who resides in Pennsylvania. The defendants claimed that Tarulli suffers from a heart condition and requested that the deposition take place near Tarulli's workplace. The court ordered the defendant employer, St. Vincent's, to document the medical condition. Unless good cause exists, Tarulli's deposition shall take place near her workplace. St. Vincent's argued that the attorney-client privilege protected correspondence about efforts to protect computer materials. A party that seeks to invoke the attorney-client privilege must prove: 1.) a communication took place between attorney and client; 2.) the communication was intended to be confidential and was kept confidential; and 3.) the communication was made to obtain or furnish legal advice. The District Court found that the attorney-client privilege did not protect October 2009 e-mails that discussed the preservation of the plaintiff's and Trojanowski's computers. St. Vincent's failed to prove that the e-mails were prepared in anticipation of litigation or that they included legal analysis, opinion or mental processes. E-mails that alerted workers about Robert Trojanowski's departure and that discussed changes to the e-mail directories also were not protected, because they were not related to obtaining or to furnishing legal advice. November 2009 e-mails to and from an in-house attorney, Pamela Miller, that discussed a litigation hold on Buxbaum's and Trojanowski's documents involved legal advice. The e-mails were entitled to attorney-client privilege. The court also ordered St. Vincent's to provide Buxbaum a copy of the hard drive of Trojanowski's computer.

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