And now, for something completely different.* In a break from our recent All-Say-on-Pay-All-the-Time format, today we will look at any attorney-client privilege issue in litigation between the employer and a former executive.

I previous blogged on whether a former executive could claim attorney-client privilege for email communications he/she made from an employer-issued computer. DeGeer v. Gillis, considered the question as to emails sent from an employer-issued computer over the former employee's work address and some sent from his personal email address (see Attorney-Client Privilege Issue for Executive Email Communications).

As other courts have done, the federal district court in Chicago focused on the employer's email, computer use and confidentiality policies in applying a five factor test to determine that the former employee did not waive the privilege as to emails sent from either address:

  1. Does the employer maintain a policy banning personal use of e-mails?
  2. Does the employer monitor the use of its computer or e-mail?
  3. Does the employer have access to the computer or e-mails?
  4. Did the employer notify the employee about these policies; and
  5. How did the employer interpret its computer usage policy?

In this case, the court found the fifth factor to be decisive, concluding that: "The record unambiguously demonstrates that Huron believed that employees did not waive the attorney-client privilege by communicating with counsel over their work email addresses and on Huron computers."

Maybe cases like this are why the demand for my presentations on “Ethics, Conflicts and Attorney-Client Privilege Issues in Executive Compensation” continues to increase. Or maybe it is the fact that several states, including Illinois, have recently increase the number of CLE ethics hours required. I prefer to think that it's because of my fine presentations and rapier-like wit.