Increasingly, courts are faced with the question of whether an employee can claim attorney-client privilege with respect to e‑mail correspondence captured by an employer’s computer or computer system. Indeed, we have had occasion to discuss these issues before, most recently in our August 2010 Employment Law Update. See A Split of Authority Regarding the Confidentiality of an Employee’s Personal E‑mails on a Company Computer, Employment Law Update, Aug. 2010, available at http://www.kramerlevin.com. Currently, there seems to be a burgeoning consensus that an employee cannot assert privilege over e‑mails associated with a company-provided e‑mail account when the employee has notice that the company may monitor e‑mail usage.

In Holmes v. Petrovich Dev. Co., the plaintiff claimed privilege with respect to e‑mail correspondence with her attorney that she sent and received using her company-issued e‑mail account and computer. 191 Cal. App. 4th 1047, 119 Cal. Rptr. 3d 878 (3d Dist. 2011). The plaintiff urged the California court to consider the decision of the New Jersey Supreme Court in Stengart v. Loving Care Agency, in which e‑mail on an employer-owned computer was found to be privileged because (i) the plaintiff used a private, web-based e‑mail account that was password-protected; (ii) the employer’s privacy policy covering web-based e‑mail was ambiguous; and (iii) the e‑mails contained a disclaimer indicating that they were confidential attorney-client communications. 201 N.J. 300, 990 A.2d 650 (2010).

The Holmes court found Stengart inapplicable, noting that the Holmes plaintiff used a company-provided e‑mail account and the employer’s handbook explicitly prohibited personal e‑mail activity using company resources, notified employees that e‑mails were subject to monitoring, and stated that e‑mails were not private. Instead, the court found the plaintiff’s e‑mail correspondence to be similar to that of the plaintiff in Scott v. Beth Israel Med. Ctr., Inc., 17 Misc. 3d 934, 847 N.Y.S.2d 436 (Sup. Ct. N.Y. Cty. 2007). In Scott, Justice Ramos ruled that the plaintiff could not claim privilege over e‑mail correspondence sent on his employer-provided e‑mail account because he knew the employer’s policy reserved use of the account for business purposes only, noted the employer’s ownership of the contents of the account, and reserved the right to access all communications associated with the account.

As discussed in our August 2010 Employment Law Update, both Scott and Stengart turn on the particular language of the employer’s policies. Courts focus on whether the employee had a reasonable expectation of privacy and consistently inquire into (i) whether the employee used an e‑mail address and account provided by the employer and (ii) what the employer’s policy disclosed about monitoring company-owned resources. As in Holmes, an employee who uses a company-provided e‑mail account and who is notified that the employer may monitor the contents thereof has an uphill battle in seeking to assert privilege over e‑mails associated with that account.

A more difficult case is presented where, as in Stengart and National Economic Research Assocs. v. Evans, 21 Mass. L. Rptr. 337, 2006 WL 2440008 (Super. Ct. 2006), the employer cannot clearly establish policies granting an unfettered right to access the employee’s e‑mails. In both Stengart and Evans, the employer’s policy manual notified employees that their work-issued e‑mail was subject to monitoring but did not clearly address the right to access e‑mails from personal accounts. As the Evans court noted, “many computer users do not know that the content of such [web-based] e‑mails could be stored on their computer hard drives as temporary internet files.” On the other hand, e‑mails found as temporary internet files may not be privileged where an employer has explicitly notified employees that information sent over the internet is monitored. See, e.g., Long v. Marubeni Am. Corp., No. 05 Civ. 639, 2006 WL 2998671 (S.D.N.Y. Oct. 19, 2006).

Employers should consider the following when drafting their electronic communications policies in order to cast the widest discovery net: n Use plain language. If a policy is overly technical, and consequently unclear as to what an employer is monitoring, an employee may be able to successfully argue that he or she had a reasonable expectation of privacy.

  • Expressly define terms. The Stengart court faulted the defendants for using terms like “e‑mail system” and “media systems and services” without defining those terms.
  • Claim an ownership interest. Expressly state that the firm owns all documents created on or using firm resources.
  • Tell employees what to expect. Describe who will have access to company-issued e‑mail and what information is captured by system-monitoring or surveillance.
  • If personal use of employer resources is permitted, notify employees of what electronic information is captured and monitored, including a specific reference to temporary internet files.
  • Favor more information, rather than less. For example, consider whether to specifically address the treatment of both firm-owned and private e‑mail accounts.