In most states, it is fairly clear that attorney-client privilege does not apply to communications between an employee and the employee's personal lawyer if the communications are made using the employer's email system and if the employer has informed employees that they have no right of confidentiality to communications using the employer's email system. As noted in Holmes v. Petrovich Dev. Co., 191 Cal. App. 4th 1047, 1051 (2011), for example, "the e-mails sent via company computer . . . were akin to consulting her lawyer in her employer's conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard . . . ." Under Holmes and many other similar cases, the question is not one of privilege waiver, but of the absence of any privilege at all because of the lack of a reasonable expectation of confidentiality.

Two decisions this year – Miller v. Zara USA, Inc., ___ N.Y.S.3d ___, 2017 WL 2429366 (N.Y. App. Div. June 6, 2017) and Peerenboom v. Marvel Entertainment, LLC, 50 N.Y.S.3d 49 (App. Div. 2017) – by the First Judicial Department of the New York Appellate Division agree with this holding but also reach another issue that neither Holmes nor most similar cases address. Although finding attorney-client privilege unavailable, both courts held that work product privilege could be available if no one other than the employees and their counsel has, in fact, reviewed the emails. The Miller case relies primarily on Peerenboom for this proposition, and Peerenboom in turn relies primarily on the New York Court of Appeals decision in People v. Kozlowski, 11 N.Y.3d 223 (2008). In Kozlowski, the court declined to find a waiver of work product privilege for investigative materials that had not been received or reviewed by third parties, even though they theoretically could have been.

There may be instances in which, for example, an employee's email communications with the employee's lawyer by way of the employer's email system does not reflect an anticipation of litigation and will therefore not be subject to work product protection. As both courts stated, the absence of evidence of actual disclosure or review does not, "standing alone," result in the loss of work product privilege. Both courts also ordered an in camera review of the communications to determine if work product privilege applied. Nonetheless, Miller and Peerenboom raise at least three further questions. What may tip the balance and convince a court that work product protection may or may not apply in this kind of situation? To what extent will Miller and Peerenboom be followed in other jurisdictions? Can an employer avoid losing access to employee emails on work product grounds by, for example, reviewing employee emails when an employee's departure seems likely? Unless and until these questions have clear answers, the standard path by which employers review former employee emails sent on the employer's email system may be somewhat strewn with debris.

There may, however, be an alternative approach by which an employer can avoid these risks. Apparently, the employers in Miller and Peerenboom had electronic access policies that required employees to acknowledge that they had no expectation of privacy when using the employers' email systems but that did not expressly address privilege protections. Whether or not these cases were correctly decided, an express addition to the policies in which employees acknowledge that they have neither an expectation of confidentiality nor a right to claim work product or other privilege protection would appear to address these courts' concerns.