As reported in the Minneapolis Star-Tribune, there is a very interesting sideshow developing in the bankruptcy case of former auto mogul Denny Hecker: his attorneys are demanding that one of his creditors, Chrysler Financial, return thousands of internal documents that Hecker alleges were stolen in 2008 by his former executive assistant, Cindy Bowser. Chrysler Financial, owed nearly $400 million by Hecker, sued Hecker in July, alleging fraud and forgery over loan documents he submitted to obtain Hyundai vehicles.
Bowser apparently copied the emails and documents onto a flash drive while she was still employed by Hecker, and kept them after her employment ended. She ultimately turned them over to Chrysler in response to a suboena that she received. Hecker’s lawyer is arguing that Bowser had no right to the emails and likely violated the Stored Communications Act and the Computer Fraud and Abuse Act.
Hecker’s motion also requests that the court disqualify Chrysler Financial’s attorneys at Gray Plant Mooty Mooty & Bennett “based on their conduct in refusing to return stolen e-mail communications and documents” and failing to protect privileged information. Chrysler Financial received Bowser’s electronic documents last month as a result of a subpoena to Ms. Bowser.
Chrysler’s attorneys have argued that Bowser did not steal any documents because she was e-mailed directly on all correspondence to Hecker. They also complained that Hecker’s attorney was immediately sent copies of Bowser’s e-mails, but Hecker’s legal team never claimed that they were privileged. They also sent a letter to one of Hecker’s former attorneys warning that unless he took steps in court to quash the trustee’s subpoena, Chrysler Financial would be forced to turn over the materials.
I obviously don’t have all the facts here, but at first glance it is hard for me to see what right Ms. Bowser had to remove and keep work-related documents after her employment ended. On the other hand, it doesn’t look like the lawyers at Gray Plant did anything wrong.
Hat Tip: Seth Leventhal
12/11/2009 at 9:51 am Permalink
Just on the facts you’ve summarized, T.J., I think Hecker’s attorneys are grasping at straws. It looks like they failed to properly protect privileged documents and failed to respond promptly when they were notified by opposing counsel about the docs. Those are 2 big factors leading to a waiver of privilege. The secretary’s alleged violation of other laws won’t likely help him either – there’s no civil “fruit of the poisonous tree” doctrine.
But this will be a great example to talk about at the ethics seminar we’re doing on Dec. 4th!
ETC