San Mateo County settles lawsuit alleging jail was reading protected inmate emails

Plaintiffs were defense lawyers who claimed that in-custody email system did not exclude attorney-client correspondence from correctional officers’ review

San Jose Mercury News

By: Robert Salonga

REDWOOD CITY — San Mateo County has agreed to modify its in-house email system for jail inmates to ensure that privileged legal correspondence is shielded from the prying eyes of correctional officers, after a group of criminal-defense lawyers filed a federal lawsuit, according to court records.

An agreement was reached earlier this month to settle the claims, in which the county admitted no fault or liability for the alleged practice but nonetheless promised a judge that it would institute a lawyer registry to automate the exclusion of attorney-client-privileged communications from jail review.

The lawsuit, filed in September on behalf of attorneys Curtis Briggs, Robert Canny and Matthew Murrillo, stated that the county sheriff’s office gave no notice or warning that it had the ability to look through private communications between attorneys and inmates.

An initial response from the sheriff’s office contended that the system “clearly and specifically tells all persons in custody who use it that it is not for communicating with attorneys. Further, all others who use it are clearly informed that emails can be monitored and are not private.”

While denying any fault, the county has since done an about-face, pledging in the settlement agreement that it “will use its best efforts to implement a professional registration option in SEM to enable county incarcerated persons to communicate confidentially with their counsel of record.”

SEM refers to SmartInmate Electronic Messaging, a service by Florida-based Smart Communications Holding, Inc. which is contracted to operate the county jail messaging system through 2024.

The agreement also includes a compulsory joint public statement from the plaintiffs and defendants that notes that the plaintiffs will not pursue legal fees so that “this settlement does not cost taxpayers any money,” and that the plaintiffs are “grateful for the county’s recognition of the importance and the integrity of the attorney-client relationship for incarcerated persons and their counsels.”

Ara Jabagchourian, an attorney who represented the suing lawyers, said he’s glad the court system compelled a resolution so quickly.

“We weren’t there to make money. Our point was to get this change done immediately,” Jabagchourian said. “They did the right thing, but they should have done it before we had to file. But then it became public, it got embarrassing, and they gave us what we needed.”

A message left with the sheriff’s office was not immediately returned Friday.

Other grievances some of the suing attorneys — as well as civil rights activists — have with the county’s jail mail system remain unresolved. The Smart system was approved and instituted in the county with little public fanfare, which they attribute to the fog of the pandemic.

What remains in place is a workflow in which personal mail sent to people held in San Mateo County jails must first go to a P.O. Box for Smart Communication in Seminole, Florida, where letters and other paper correspondence is scanned electronically, reviewed for content, then entered into the system at the jail where it can be viewed with the in-house tablets. The actual paper material is shredded after 30 days, but electronic records are retained for at least seven years, according to the county’s contract with the vendor.

Joint Statement:

The lawyer plaintiffs are pleased to announce a speedy resolution of their federal lawsuit
involving the
San Mateo County Sheriff s Office. The County has agreed to use its best efforts to implement a
means for incarcerated persons to communicate confidentially with their attorneys using electronic
messages. The electronic message means is in addition to the existing methods of attorney client
communications within the San Mateo County jails of in person visits, video visits, telephone
calls, and legal mail. The lawyer plaintiffs have agreed to waive all fees and costs so this
settlement does not cost taxpayers any money. The lawyer plaintiffs are grateful for the County’s
recognition of the importance and the integrity of the attorney-client relationship for
incarcerated persons and their counsels.