The privilege implications of employees emailing their attorneys from an employer’s computer have been addressed by a number of courts. In one of the first reported decisions on this issue, a bankruptcy court addressed the application of the attorney-client privilege to an employee who uses a corporate network to communicate with his personal attorney. In re Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005). New York specifically addressed the issue via statute that provides that any communication that is privileged under the attorney-client privilege does not lose its privileged nature simply because it is communicated by electronic means or because persons necessary for the delivery of the electronic communication may have access to the content of the communication. N.Y.C.P.L.R. § 4548.
The Court noted that it is generally accepted that attorneys can communicate, without fear of disclosure, with their clients via unencrypted e-mail. This court examined the e-mail privacy cases as a starting point and noted that the application of the privilege must be consistent with objective and subjective components. The Court ultimately considered four factors when formulating its test to determine whether e-mails were privileged:
- does the corporation maintain a policy banning personal or other objectionable use,
- does the company monitor the use of the employee's computer or e-mail,
- do third parties have a right of access to the computer or e-mails, and
- did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?
In this case, while the court found that third-parties could review the e-mails because they were sent over the network, and stored on the company's servers (a fact that is true in virtually all cases), the remaining factors were not met because the evidence was “equivocal” regarding the existence or notice of monitoring policies. Thus, the court concluded that the privilege was applicable.
Other courts have applied similar, but slightly different factors. In one case the court considered the non-enforcement of a computer monitoring policy, as well as traditional factors that included the reasonableness of the precautions taken by the producing party to prevent inadvertent disclosure; the delay, if any, in the party's actions in asserting an issue, and an examination of the issue of fairness. Curto v. Medical World Communications, Inc., 2007 WL 1452106 (E.D. N.Y. 2007).
New York courts have reached different conclusions, at least where personal use is banned. Scott v. Beth Israel Medical Center Inc., 17 Misc. 3d 934, 847 N.Y.S.2d 436 (Sup 2007). The Scott court applied In re Asia Global Crossing, but in this case Beth Israel had a computer use policy that disclosed their right to monitor, and explicitly stated that the computer systems could not be used for personal use. The Court concluded that the ban on personal use supported a finding that the emails were not privileged.
California courts first addressed a related issue--protection of electronic files on a work computer. People v. Jiang, 131 Cal. App. 4th 1027 (2005). In Jiang, the defendant used his work computer to create electronic files that were communications to his attorney. The employer had a computer use policy that stated there was no reasonable expectation of privacy, but it did not preclude personal use. Ultimately the court concluded that the defendant's communications were confidential under the attorney-client privilege and could not be used by the prosecution.
A recent California case reached the same conclusion as Beth Israel, based upon an employee policy similar to the one at issue in that case. In Holmes v. Petrovich Development Company, LLC, the Court of Appeal found that an employee had no expectation of privacy on an employer’s system where the employee handbook expressly banned personal use. The policy expressly stated that emails were not private and that the company could “inspect all files or messages…”. The Court found that because she used a work computer after agreeing to this policy, she had waived the attorney-client privilege, in contrast to if she had used her home computer where third-parties might have had access, but they were incidental to the communication.
Holmes presents a continuation of the prior cases on attorney-client privilege, and is consistent with In Re Asia Global Crossing, Beth Israel, and even Loving Care. These cases are consistent in that where personal use is banned then employees are found to have waived the privilege, and where personal use is permitted, a privilege can be found at times by courts. There are a number of other cases on this issue and they can be found in Section 9:3 of my domestic privacy book.