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Email – Whose Eyes Can Pry?

Daniel J. Siegel, Esq. on 2/9/2011

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Everyone uses email. We use it at home, we use it at work, and we use it anywhere else our “smart” phones and other devices allow. It doesn’t matter where we are, we all seem to have an insatiable desire to read our email – and send text messages and post on Facebook and other sites – immediately. While doing so promotes both efficiency, and distraction, it also can raise security and privacy issues, and legal issues for all types of businesses. As attorneys, we need to know how to handle these situations at our firms, and what to advise our clients so that they do not find themselves subject to lawsuits and claims of invasion of privacy.

To date, there hasn’t been much case law. But the empty chasm of caselaw is filling quickly. Recently, in Stengart v. Loving Care Agency, Inc., 1.990 A.2d 650 (N.J. 2010), the New Jersey Supreme Court ruled that an employee could expect privacy when she exchanged e-mails with her attorney, using an employer-issued computer and a personal (non-company), password-protected, e-mail account. The court held that because the employer’s e-mail policy did not warn employees that the contents of personal, password-protected, Web-based e-mails were stored on a hard drive and could be forensically retrieved and read, the plaintiff had a reasonable expectation that these e-mails would remain personal and confidential.

The court specifically rejected the claim that the attorney-client privilege either did not attach or was waived, and held that defense counsel’s review and use of the privileged e-mails violated New Jersey Rule of Professional Conduct 4.4(b), which states that a “lawyer who receives a document,” which includes an e-mail, and who “has reasonable cause to believe that the document was inadvertently sent shall not read the document or, if he or she has begun to do so, shall stop reading the document” and promptly notify and return the document to the sender.

It was only a matter of time before a Court considered the flipside of the issue, i.e., whether an employee had a reasonable expectation of privacy when using an employer-issued computer company-issued e-mail account. The first such ruling came down in California recently, with the Court ruling that a woman who sued her employer claiming discrimination cannot shield emails between her lawyer and her because they were sent from her work e-mail account.

In the case, Holmes v. Petrovich Development Co., LLC, 2011 Cal. App. LEXIS 33, 111 Fair Empl. Prac. Cas. (BNA) 424 (January 13, 2011), the Court of Appeal of California, ruled that the email was a confidential communication protected by that attorney-client privilege because the employer warned employees that their emails were not confidential and were subject to monitoring:

… an attorney-client communication “does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication.” (Evid. Code, § 917, subd. (b).) However, 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 by him. By using the company’s computer to communicate with her lawyer, knowing the communications violated company computer policy and could be discovered by her employer due to company monitoring of e-mail usage, Holmes did not communicate “in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted.” (Evid. Code, § 952.) Consequently, the communications were not privileged.

The California court distinguished its decision from Stengart, noting that unlike Holmes, plaintiff Stengart (1) used a personal Web-based email account that was not clearly covered by the company’s policy, and (2) “the e-mails contained a standard hallmark warning that the communications were personal, confidential, attorney-client communications.”

So where do these cases leave attorneys, employees and clients? Although no Pennsylvania courts have chimed in on the discussion, the answer seems fairly obvious:
  • Employers must establish clear policies about email use, although blanket provisions banning personal email use during work hours may not survive judicial scrutiny;
  • Employees should, whenever possible, refrain from communicating with their attorneys using an employer-issued computer;
  • Employees have no expectation of privacy when using a company-issued email account to communicate with counsel;
  • If an employee must communicate with counsel using a company-issued computer, the employee should only do so using a private, non-company-issued email account; and,
  • All such communications should contain appropriate disclaimers that they contain information covered by the attorney-client privilege.
It is only a matter of time before Pennsylvania courts weigh in on these issues. But with the well-reasoned decisions in Stengart and Petrovich, the courts have some excellent guidance with which to work.

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