Posted by Henry M. Sneath, a principal and shareholder at Picadio Sneath Miller & Norton, P.C. in Pittsburgh, Pa.
Here’s a scary decision by a California Appellate Court reported on Wired.com http://www.wired.com/threatlevel/2011/01/email-attorney-client-privilege/. An employee who sues her employer for discrimination, and who communicates with her lawyer using her employer’s e-mail system, waives the attorney client privilege by using the company’s e-mail system to seek or receive legal advice from her lawyer. In other words, if you sue your employer, you may not use that employer’s e-mail server to communicate with your lawyer, or those communications are not privileged. This is an important issue not only to litigants, but to lawyers, who routinely send litigation related e-mails to clients at workplace e-mail addresses. Lawyers must now, perhaps, ask clients a series of questions regarding the process of e-mail communications so that a privileged system of communication can be established. Wired.com quotes the court as holding that “The e-mails sent via company computer under the circumstances of this case 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.” The key to the decision involves the explicit warnings given to plaintiff and her fellow employees about the use of company e-mail. The court’s holding cited the following rationale for its decision to vitiate the privilege: “This is so because Holmes used a computer of defendant company to send the e-mails even though (1) she had been told of the company’s policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail, (2) she had been warned that the company would monitor its computers for compliance with this company policy and thus might “inspect all files and messages . . . at any time,” and (3) she had been explicitly advised that employees using company computers to create or maintain personal information or messages “have no right of privacy with respect to that information or message.” See the Courts Published Opinion: http://www.courtinfo.ca.gov/opinions/documents/C059133.PDF
Whether the California decision will be followed elsewhere, or copied in other state or federal courts remains to be seen. We at PitIPtechblog will continue to monitor this decision and its fallout.
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Note that Stengart v. Loving Care Agency, Inc., 2010 N.J. Lexis 241 (N.J. Mar. 30, 2010) goes the other way. Under the facts of that case, the court found that the privilege was not waived, but it went further to suggest that the privilege cannot be waived even if the employer has a perfectly worded email policy. There, the court found that the employee took steps to protect the privacy of the emails by using a password protected personal account. Further, the court held that the employer’s email policy was ambiguous. The court went on to explain that its ruling in the case did not mean that employers cannot monitor or regulate the use of workplace computers. Nevertheless, the court found that employers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy. Because of the importance of the attorney-client privilege, the court concluded that even a perfectly worded e-mail policy which provided an employer could retrieve and read an employee’s attorney-client communications, would not be enforceable. While this ruling is more favorable than the case discussed above, practitioners should assume the worst in jurisdictions where the issue has not yet been decided.