A California state appeals court recently ruled that a woman who sued her employer claiming discrimination cannot shield the e-mails she sent to and received from her lawyer in the litigation because they were sent from her work e-mail account. The court concluded that the e-mails were not a protected confidential communication (in other words, they were not protected by the attorney-client privilege) because the woman’s employer had warned that employee e-mails were not confidential and were subject to monitoring.
In contrast, in March, 2010, the New Jersey Supreme Court protected e-mails sent from a personal account on a work computer to a lawyer. The court noted that the e-mails weren’t clearly covered by the employer’s policy, and that they contained a warning that they were confidential attorney communications.
To date, no New York court has ruled on the confidentiality of attorney-client e-mails sent to or from a workplace computer.
There are two lessons here, one for employers, and one for employees. For employers, it is important to have a well-written computer, internet and e-mail policy which states that the company’s computer and e-mail systems are only for business, and not personnel, use. In addition, the policy should state that there is no right to privacy in anything stored in, sent over, or received on the company’s computer or e-mail system(s), and that the company has the right to retrieve and read any e-mail messages sent or received over its computer and e-mail system(s).
For employees, the lesson is much simpler: do not send any personal e-mail messages, and in particular any messages that you wish to keep confidential (whether to a family member, friend, physician, attorney or otherwise), using your employer’s computer or e-mail system. This includes not only desktop computers, but laptops, tablets and smart phones issued by your employer as well.