E-Mail Privacy and Attorney-Client Privilege

Most employers are by now aware that it is a good idea to have policies that regulate the employee use of e-mail, telephones, the internet and other electronic communications facilities.  Notifying employees that they should not expect or assume that their use of those facilities is private is a core principle of such policies.  Employees should realize that they should not use the company’s e-mail account for personal, private matters, yet most continue to do so – everyone seems to assume that e-mail is private, no matter who owns the account and despite policies stating otherwise.  This may not be true, however, and anyone using a company e-mail account for his or her private messages could be in for a rude awakening – disclosure of the contents – if not careful.
This caution is particularly important when thinking about communications between a client and his or her attorney.  Such communications are privileged and confidential, by law, unless that privilege is waived by the client.  When a client uses his or her employer’s e-mail account to communicate with the attorney, particularly when the employer’s policies make it clear that such messages “are not private, and may be inspected without the employee’s consent,” has the client/employee waived the privilege?  This question has been answered both “yes” and “no” by court’s facing the question.  Now, a recent case has firmly declared that it is a waiver – thus the client gave up her attorney-client privilege.  The case presented a unique situation.
In this case, the attorney was defending a company that his other client, Jeri, worked for.  Jeri was not a party in that lawsuit. The attorney was served with a subpoena requiring that he produce all his records relating to that company.  It so happened that the company’s records included e-mail messages that Jeri had sent to this attorney (regarding her private legal matters) using the company’s e-mail account.  The attorney refused to produce those messages in response to the subpoena, claiming they were confidential and privileged.  The other party objected, claiming Jeri’s privilege had been waived because she communicated with her attorney using the company’s account, rather than her private account.  The court ruled in favor of the party demanding the records.  Jeri lost her attorney-client privilege.  The decision was made by a federal trial court in November 2009.  It remains to be seen whether it will adopted as precedent in the Ninth Circuit – cases always depend on their own factual nuances.  But the judge listed the four factors to be considered in determining whether the privilege has been lost:
1.  Is there a company policy banning personal use of e-mail?
2.  Does the company monitor the use of its e-mail?
3.  Does the company have access to all e-mails?
4.  Did the company notify the employee about these policies?
Applying these factors the court ruled the privilege was waived for e-mails sent by Jeri to her attorney using her work computer.  (See, Alamar Ranch, LLC v. County of Boise, 2009 WL 3669741 (D.Idaho Nov 02, 2009) (NO. CV-09-004-S-BLW)).  Federal and state courts across the nation have taken inconsistent positions on whether the use by an employee of his or her company e-mail account waives any privacy right or attorney-client privilege.  This recent case, involving a unique procedural setting, is a warning to attorneys, clients, employees and employers about the issues that must be considered before assuming either that the e-mail is no longer private or that it remains private (for example, because the employer did not maintain and enforce a policy like that mentioned above).
Stephen C. Gerrish, Employment Group