Most employers have a policy that alerts employees that the employer may access employees’ emails, texts, and instant messages. Recent case law has highlighted the issues regarding privilege and the use of emails, texts, and instant messages (IM) on employer-owned equipment such as desktop computers, laptops, cell phones, and smartphones such as those made by BlackBerry.
If the client is an individual and sends an email to her attorney from her work computer, the email may no longer be privileged as the current case law indicates courts may view that email as being distributed to third parties. This determination may be the made regardless of whether the client’s employer accessed the client’s email account or even that specific
email. An important point is whether the employees had an expectation of privacy regarding their email, text, and IM communications, as well as whether employees were on notice of a company policy regarding use and access or monitoring of employees’ email, text, and/or IM transmissions. In one of the first cases to address this issue, a New York bankruptcy court provided four factors to be considered in these situations:
Does the company maintain a policy that bans personal or other objectionable use of its email system? Does the company monitor the use of the employee’s computer or email?
Do third parties have a right of access to the computer or emails? Did the company notify the employee or was the employee aware of the use and monitoring policies? (In re Asia Global Crossing, Ltd., 322 B.R. 247, 257 (Bankr. S.D.N.Y. 2005))
The courts do not usually make a distinction between an email sent using a client’s employer’s email account or whether the email was sent using the client’s personal email account such as Gmail or Yahoo!. The issue appears to be whether the email, text, or IM was sent using the employer’s equipment as well as whether the four factors listed above, or something similar, were in place at the time the email, text, or IM was sent. The company’s notice to employees of the company’s policies may be an employee handbook that is periodically revised where it is incumbent upon the employee to check for updates, a notice on company computers to which an employee must respond by clicking “I agree” in order to log on, or any other reasonable means of notif ying employees of the company’s policies.
If the client is a company, then emails, texts, and IMs sent from company-owned equipment to attorneys for the company (whether in-house or outside counsel) will likely be considered privileged if the emails are sent by company employees in their capacity as employees. But what if a company employee sends an email to the company’s counsel using the employee’s home computer? If the email is sent after logging in to the company’s email system which is password protected, then the email is likely privileged even if the employee’s personal computer is used by other non-employees. However, if the email is sent using the employee’s personal email account and the computer may be accessed by third parties, the claim of privilege for that email may be waived.
Paralegals should consider working with their attorneys to remind clients of these issues to hopefully avoid otherwise privileged emails, texts, and IMs becoming discoverable. Additionally, paralegals should be mindful of these issues when working on personal computer equipment, cell phones, and smartphones that may be accessed by others.
Ellen Lockwood, ACP, RP, is the Chair of the Professional Ethics Committee of the Paralegal Division and a past President of the Division. She is a frequent speaker on paralegal ethics and intellectual property and the lead author of the Division’s Paralegal Ethics Handbook published by West Legalworks.