Employees should be aware that emails to their attorneys
originating from employer-owned equipment may not be protected by
attorney-client privilege even if the employees use their personal email
accounts to send such emails. It depends on the corporate policy regarding the
use of employer's equipment and network.
In 2007, a New York court considered the following case: Dr. Scott, an employee
of Beth Israel Medical Center, sent emails to his attorney from his work email
account about suing his employer. Beth Israel Medical Center had a corporate
policy providing that employer's computer systems should be used for business
purposes only, that all information and documents created or transmitted
through the employer's communications and computer systems were company
property and that "employees have no personal privacy right in any material
created, received, saved or sent using Medical Center communication or computer
systems." Scott v. Beth Israel Med. Ctr., 847 N.Y.S.2d 436 (N.Y. Sup. Ct.
2007). So, since the policy was clear, the NY court held that Dr. Scott had no
expectation of privacy and that his emails to his attorney were not privileged.
If the corporate policy is absent, not clearly drafted or if it allows personal
use of email, then NY courts may decide that attorney-client privilege applies
to emails to personal attorneys sent from office. For example, in In re Asia
Global Clossing, Ltd., 322 B.R. 247, 257 (Bankr. S.D.N.Y. 2005), the court held
that it was unclear whether there was a corporate policy regarding personal use
of company computers, and so the attorney-client privilege was upheld.
Courts are also more likely to uphold the privilege if the employee is working
from home and sends an email to his or her attorney from home using the
employer laptop. In Curto v. Med. World Commc'ns, Inc., 99 Fair Empl. Prac.Cas
(BNA) (E.D.N.Y. May 15, 2006), the plaintiff Lara Curto worked
from home using company laptop until she was fired. Curto used the laptop to
send personal emails and to store documents from her attorney. The court ruled
that the attorney-client privilege existed because the laptop was not connected
to the office network, the employee attempted to delete emails and documents
from her drive prior to returning the computer, and even though the company had
a corporate policy prohibiting personal use of company equipment, it did not
It is clear that the outcome of these cases varies based on the specific facts
at issue. Therefore, it is advisable for the employees to be well familiar with
their company policy regarding computer use (usually found in an employee
handbook) and to use their personal home computers in the evenings or weekends
to communicate with their personal attorneys.
This blog is just a brief overview of the issue discussed and should not be
construed as legal advice.
Read more commentary from Arina Shulga on the
legal aspects of operating new and growing businesses at Business Law Post.
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