That may be a slight overstatement, but two executives at a Delaware company recently discovered that some e-mails they thought were covered by the attorney client privilege, uh, were not. That’s the bad news from the Delaware Chancery Court. Here’s the case in a nutshell, courtesy of the court:
Trusts that own fifty percent of the common stock of nominal defendant Information Management Services, Inc. ("IMS" or the "Company") allege that two of the Company's three most senior officers mismanaged the Company in breach of their fiduciary duties. The executives consulted with their personal lawyers and advisors about the alleged mismanagement using their work email accounts. IMS gathered the emails but took no position on whether they should be produced. The executives invoked the attorney-client privilege. They did not rely on the work product doctrine. The trusts moved to compel, arguing that the attorney-client privilege does not apply because the Company reserved the right to monitor all email communications on IMS accounts, thereby eliminating any reasonable expectation of confidentiality. The motion is granted.
It’s rare to see a court opinion expressed so clearly and concisely. In even more concise terms, if your employer reserves the right to review your e-mails, don’t assume that anything you send from your work computer is private. That’s what Gmail is for!