concurring.
[¶ 32] I concur in and join that portion of the Court’s opinion that dismisses the appeal as interlocutory without reaching the merits. I do not join in part 11(B) of the Court’s opinion that criticizes the actions of Fiber Materials, Inc.’s in-house counsel and trial counsel in disclosing the contents of the Verrill Dana memo.
[¶ 33] The record reflects that this memo was sent to Maurice Subilia at his FMI business e-mail address and received by and stored on a computer owned by FMI. The record further reflects that Su-bilia was fully aware of, and had instructed other employees regarding, FMI’s computer and e-mail policies which stated that, as to FMI: (1) any right or expectation of privacy is waived; (2) business e-mails are not confidential and are subject to review and monitoring by FMI; and (3) FMI computers, and anything stored on such computers, are the property of and reviewable by FMI.
[¶ 34] Being fully cognizant of such policies, Subilia accepted the risk that the Verrill Dana memo, sent to his business email and placed on his business computer, might become known to FMI. At this stage of the proceedings, when we are not reaching the merits of the appeal, it is reasonably arguable that reviewing and disclosing the contents of a document that, according to the FMI computer policy was not confidential as to FMI, did not amount to violation of an ethical rule. The computer contents ownership and e-mail access policies of FMI upon which FMI counsel acted, are hardly unique. They appear quite similar, for example, to computer and e-mail access policies of Maine State government, including the courts.
[¶ 35] Although it is reasonably arguable that no ethical violation occurred, the Court criticizes FMI counsel for not exercising greater caution “in this uncharted area of the law in Maine.” But the law the Court is referencing is law regarding accidental disclosure of privileged documents to another party in a court action. A court rule relating to inadvertent disclosures of privileged material, M.R. Civ. P. 26(b)(5)(B), was adopted, effective July 1, 2008. This rule was based on our opinion in Corey v. Norman, Hanson & DeTroy, 1999 ME 196, ¶ 19, 742 A.2d 933, 941. The new Maine Rule of Professional Conduct 4.4, effective August 1, 2009, also addresses inadvertent disclosure of privileged or protected material.
[¶ 36] These rules are all based on the premise that a disclosure of privileged material is inadvertent. However, here it appears that the disclosure may have been ill considered but was not inadvertent. The Verrill Dana memo related to FMI’s business. It was sent to Subilia, an FMI employee, through the FMI e-mail and placed on his FMI-owned computer. At the time, Subilia was aware of the policies that there was no right or expectation of privacy in the contents of e-mails and files on FMI computers. Considering those policies, the FMI attorneys could have reasonably believed that the memo could be read and disclosed by FMI.
[¶ 37] Because there is a reasonable argument to be made that in-house and trial counsel for FMI committed no impropriety in receiving, reviewing, and disclosing the contents of the Verrill Dana memo in litigation with its former corporate officer, the Court, in dismissing this appeal as interlocutory, should not criticize conduct that, upon fuller examination, may be viewed as having violated no ethical rules.