In previous issues of the Electronic Discovery Update, we have discussed recent court determinations of whether personal emails sent by employees from their work computers should be treated as confidential and within the protection of the attorney-client privilege. Most recently, the Southern District of Florida has weighed in on the issue. In Leor Exploration & Production LLC v. Aguiar, the court held that a defendant had no reasonable expectation of privacy in emails transmitted through his employer’s server, and consequently emails between the defendant and his attorney were not protected by the attorney-client privilege. 2009 WL 3097207 at *4 (S.D.Fla. Sept. 23, 2009).

Florida Precedent

On June 23, 2009, Paul McCawley, an attorney for Defendant Guma Aguiar, was deposed in connection with ongoing litigation between Mr. Aguiar and various related entities in the oil and gas exploration and production business, including Leor Exploration and Production LLC (“Leor”), for which Mr. Aguiar was the former CEO and Vice Chairman. Id. at *2. During that deposition, Leor’s counsel sought to question Mr. McCawley about an email he sent to Garrett Smith, another Leor employee who was purportedly acting as Mr. Aguiar’s “personal advisor and agent” when the email was sent. Id. at *3. Mr. McCawley objected to use of the email during the deposition on the ground that it constituted a privileged attorney-client communication between him and Mr. Aguiar, through Mr. Aguiar’s agent. The appointed Special Master decided that the email was privileged. Leor opposed the Special Master’s ruling, and the district court ruled in Leor’s favor. Id. at *1.

The court refused to deem the email privileged, holding that “Aguiar had no reasonable expectation of privacy” with regard to it. Id. at *3. Under Florida law, which controlled in the litigation because subject-matter jurisdiction was based on diversity, “communication between lawyer and client is ‘confidential’ if it is not intended to be disclosed to third parties other than . . . [t]hose to whom disclosure is in furtherance of the rendition of legal services to the client” or “[t]hose reasonably necessary for the transmission of the communication.” Fla. Stat. § 90.502(1)(c). Mr. Aguiar failed to establish the intent to keep the email confidential because it initially was sent to Mr. Smith, a third party affiliated with Leor, without any indication that Mr. Smith should keep it confidential. Id. at *3.

More generally, the court determined that no privilege would have applied even if Mr. McCawley had emailed Mr. Aguiar directly. Id. at *4. In reaching this conclusion, the court considered four factors set forth in In Re Asia Global Crossing, Ltd., 322 B.R. 247, 257 (S.D.N.Y. 2005): “(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee’s computer or email, (3) do third parties have a right of access to the computer or emails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?” Id. at *4.

Leor had implemented and documented a strict policy regarding personal email-use among employees in its employee handbook, which provided, among other things, that “Leor owns all electronic communications, [] that individuals using the Leor email system have no expectation of privacy,” and that Leor’s representatives “may access and monitor the use of its systems and equipment.” Id. at *4. Thus, the court held that these policies, as set forth in the handbook, precluded Mr. Aguiar from asserting an expectation of privacy with regard to any email sent over Leor’s email system.

The Florida court’s approach to the confidentiality of personal email at work drew directly from the Asia Global Crossing opinion. That decision equated personal emails sent from a work email account with general hard copy files kept at the workplace, stating that “sending a message over [an] email system [is] like placing a copy of that message in the company files. Short of encryption, . . . [e]mails [can] be reviewed and read by anyone with lawful access to the system.” Asia Global Crossing, 322 B.R. at 259. Following this reasoning, the Florida District Court imposed an extremely high burden for establishing the confidentiality of personal emails sent over an employer’s server. The New York Supreme Court has adopted a similarly strict approach. See Scott v. Beth Israel Medical Center, 2007 WL 3053351 (Sup. Ct. N.Y. Co. Oct. 17, 2007); see also How Private Are Personal Emails?, Electronic Discovery Update, Mar. 2008, available at http://www.kramerlevin.com.

New Jersey Precedent

In sharp contrast to these decisions, the New Jersey Superior Court, Appellate Division, recently held that email communication with one’s attorney over an employer’s email system is protected from production. Reversing the trial court’s decision in Stengart v. Loving Care Agency, Inc. (No. BER-L-858-08, N.J. Super. Ct. L. Div. Feb. 5, 2009), the Appellate Division found that an employee had not waived her attorney-client privilege with respect to email communications with her attorney that were conducted at the employee’s work via a web-based, password-protected Yahoo! email account. 973 A.2d 390 (N.J. Super. Ct. App. Div. June 26, 2009). The Court reasoned that the email should remain privileged where the public policy underlying the attorney-client privilege outweighs the employer’s interest in the enforcement of its electronic communications policy. See Attorney-Client Privilege Trumps Employer’s Interest in Private Emails: Revisiting Stengart v. Loving Care Agency, Inc., Electronic Discovery Alert, July 2009, available at http://www.kramerlevin.com.

Conclusion

Because there are conflicting holdings across jurisdictions regarding the confidentiality of personal emailing at work, legal practitioners should be wary before sending an email to a client’s workplace email address, and should advise clients about the risk of waiver – including even the possibility of waiving privilege by accessing a personal email over an employer’s server. Legal practitioners are also well-advised to act with an abundance of caution when emailing clients generally, until more consistency emerges in the law.