Many litigators, aware of the pitfalls of electronic discovery, are careful not to disclose documents that may lead to the inadvertent waiver of the attorney-client privilege. No less important are the efforts which can be taken to preserve the privilege at the time the communications are first transmitted. In a number of recent cases, employers have sought to discover and use the content of e-mail communications between employees and the employees’ personal attorneys on the basis that the attorney-client privilege was waived because those communications are accessible to a third party – the employer. Although communications between a client and her lawyer for the purpose of obtaining legal advice and intended to be confidential are generally privileged, the privilege can be waived by disclosure of the communications to a third party. Inadvertent disclosure does not waive the privilege unless the client or her counsel failed to take reasonable precautions to maintain the confidentiality of the communications.
An employee’s use of a company-provided computer or e-mail account to correspond with her lawyer regarding a personal legal issue raises the possibility that this correspondence may be disclosed to a third party – the employer. As disclosure to a third party typically acts as a waiver of the attorney-client privilege, the question arises whether mere use of the employer’s computer or e-mail system is sufficient to waive the privilege.
In one of the few Massachusetts decisions addressing this question, National Economic Research Associates, Inc. v. Evans, 21 Mass. L. Rptr. 337 (Mass. Super. Ct. 2006), a Superior Court judge considered whether an employee waived the attorney-client privilege by communicating with his lawyer using a password-protected Yahoo account on a company- provided laptop computer. The employee had attempted to delete all such communications from the laptop, but unbeknown to him, they were nevertheless saved as screen shots on the computer’s hard drive. The company was later able to recover the screen shots, and thus review the e-mail messages, with the assistance of a forensic expert. The company’s policy concerning technology use did not expressly notify employees that e-mail sent via a private, password protected e-mail account, accessed through the Internet, was subject to review by the company, nor were employees advised that screen shots of their private e-mail would be retained on the computer’s hard drive even after the email messages were deleted. Based on those circumstances, the Court ruled that the employee did not waive the attorney-client privilege because he had a reasonable expectation of privacy in the e-mail and the company’s policies did not alter that expectation. See also Transocean Capital, Inc. v. Fortin, 21 Mass. L. Rptr., 597 (Mass. Super. Ct. 2006) (explaining if employer had given express notice in employee handbook or on employer web site that all communications transmitted, received, or stored in the company’s system were to be used for company business only and were company property, then there would be a waiver of attorneyclient privilege).
A number of decisions in other jurisdictions also demonstrate that the dispositive inquiry when determining whether an employee has waived the attorney-client privilege when using a company-provided computer or e-mail account to correspond with the employee’s personal attorney depends on the employer’s e-mail use policies and their enforcement. For example, in Kaufman v. SunGard Inv. System, 2006 WL 1307882 (D.N.J. 2006), the employer sought a determination that certain e-mails between the plaintiff and her counsel were discoverable.
The e-mails had been sent and received on laptop computers issued to the plaintiff by her employer. When she returned the laptops to the employer, she attempted to delete the messages, but they were recovered by a computer technician. The court considered the fact that the employer’s policy provided that the employer could monitor e-mail communications at any time. The employer’s policy expressly provided that “[e]mployees should not expect that any items created with, stored on, or stored within Company property will remain private.” Based on those facts, the court ruled that the plaintiff had no expectation of privacy with respect to her e-mail message and therefore waived her attorney-client privilege.
The California Court of Appeals in Holmes v. Petrovich Development Co., 191 Cal. App. 4th 1047 (3d Dist 2011), similarly held that an employee waived the attorney-client privilege in an e-mail sent to her attorney concerning possible legal action against her employer because she used a computer belonging to her employer to do so. The court indicated that the employee had been given notice of the employer’s policy that computers were to be used for company business only, that the company would monitor use of computers, and that employees “have no right of privacy” in e-mail messages sent from or received on company computers. The court compared the employee’s use of the computer under these circumstances to “consulting her attorney in one of the defendant’s conference rooms, in a loud voice, with the door open.” Likewise, in Dombrowski v. Governor Mifflin School Dist., 2012 WL 2501017 (E.D. Pa. 2012), the employee was found to have waived the attorney-client privilege with respect to e-mail stored on her employer-provided laptop because the employer had a policy indicating that employees had no right to privacy on anything contained on employer-owned equipment.
The court in Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr. S.D. N.Y. 2005), determined that the question whether the privilege was waived depended on whether the intent to communicate in confidence was objectively reasonable on the part of the former employees and noted that “objective reasonableness of that intent will depend on the company’s e-mail policies regarding use and monitoring its access to the e-mail system, and the notice provided to the employees.” A factual dispute as to the existence of such a policy and whether the employees had notice of it prevented the court from concluding as a matter of law that the use of the employer’s e-mail system destroyed the attorney-client privilege.
In contrast, the court in Stengart v. Loving Care Agency, Inc., 408 N.J. Super. 54, 973 A.2d 390 (App. Div. 2009), aff’d 201 N.J. 300, 990 A.2d 650 (2010), held that an employee had not waived her attorney-client privilege by communicating with her attorney on her private e-mail account, which she accessed on her employer-provided computer. Although the employer argued that its policy had put the employee on notice that her e-mails would be considered company property, factual disputes regarding the implementation of the policy prevented a determination that the policy compelled waiver of the attorney-client privilege. In addition, the court noted that a portion of the policy permitted “occasional personal use,” and concluded that it would be unreasonable to expect an employee to assume that personal use of her work computer was allowed, but that all personal e-mails would become the property of the employer. The court distinguished between the employer’s ownership of the computer and its ownership of the e-mails contained on it by comparing it to an employer-owned file cabinet containing “personal communications” of an employee. The court concluded, “a breach of a company policy with regard to the use of its computers does not justify the company’s claim of ownership to personal communications and information accessible therefrom and contained therein.”
As many employers have implemented written policies warning employees that their e-mail may be monitored or reviewed, expectations that attorney-client communications transmitted on company e-mail systems or equipment are “private” may be diminishing. Diminishing expectations of privacy require employees to take additional precautions to ensure that their privileged attorney- client communications remain confidential. As demonstrated above, the resolution of discovery battles concerning the assertion of the attorney-client privilege in such cases is likely to be highly fact specific, and to turn on the nature, scope, and enforcement of the employer’s e-mail use policies. Thus, for lawyers seeking to protect the confidentiality of their communications with clients, effective protection starts with an understanding of the company policies governing the client’s e-mail use. Where company policies provide for monitoring and review of employee e-mail, personal counsel communicating with an employee should advise the use of alternate means of communication.