Internet Library of Law
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Attorney Client Privilege - Internet Library of Law and Court Decisions - Updated February 17, 2008

Court holds that the use of a company's e-mail system by an employee to send personal e-mails to the employee's personal counsel does not, without more, waive any attorney client privilege in such communications.  Whether a waiver had occurred must instead be resolved by examining the employee's subjective and objective expectations that the communications would be confidential.  In analyzing this question, Courts should look for guidance to cases that address an employee's privacy rights in e-mail sent over company e-mail systems, which hinge on the resolution of a similar question -- the reasonableness of an employee's expectation of privacy in such e-mails.  Issues of fact as to the existence and application of company computer usage policies, and whether employees were warned that the Company could inspect e-mails sent over the company's system, prevented the Court from resolving the issue at this time.

The Court further held that any privileges attendant to certain additional e-mails between company employees and their personal counsel had been waived by their voluntary transmission of such e-mails both to counsel representing the company, and to a consultant rendering services to the company.

Affirming the decision of the Magistrate Judge, the District Court holds that an employee did not waive any attorney client or work product privileges that may exist in various email communications with her personal counsel transmitted to and from the employee's personal AOL email account by using a company laptop to send them from her home.  Plaintiff's employer had obtained these emails by "restoring" deleted files stored on the hard drives of these company laptops.  The Court reached this result notwithstanding the fact that the Company had a computer usage policy, of which the employee was aware, that warned employees that they had no right of privacy in Company computer equipment, the contents of which could be inspected by the Company.

Court holds that employees waived both the attorney client and work products privileges by using a company computer system to transmit otherwise privileged communications to their counsel.  These communications were sent from private password protected email accounts, and not from the company's own email system.   Importantly, however, copies of these emails were retained by the company's system in "temporary internet files."  As the company could and did obtain these emails by reviewing its own system, the court held that plaintiffs had waived applicable privileges by failing to maintain the confidentiality of these communications in light of the company's electronic communications policy.  That policy advised the employees not to use the company system for personal purposes, and warned them that they had no right of privacy in any materials sent over the system.  The court reached this result notwithstanding its determination that the employees had no knowledge that copies of their email communications were so retained in the company's computer system.

Court holds that communications between plaintiff and his counsel, sent from and to  plaintiff over his employer’s email system, were not protected from disclosure by the attorney client privilege because these communications were not made in confidence.  In reaching this result, the Court relied, in large part, on the email policy that governed the use of this company email system.  This policy advised all employees that the company email system should not be used for personal purposes, and that employees had no personal privacy right in email sent over the company email system, which the employer could access and disclose at any time. 

Notably, the Court reached this result notwithstanding the fact that New York’s Civil Practice Law and Rules (“CPLR”) section 4548 provides that “no communication privileged under this article shall lose its privileged character for the sole reason that it is communicated by electronic means, or because persons necessary for the delivery or facilitation of such electronic communication may have access to the content of the communication.”  (Emphasis added).  The Court held that it is the presence of the employer’s computer use policy, and not the fact that the material was transmitted over the company’s email system, that rendered the communication non-privileged.

The Court further held that plaintiff waived any work product privilege attendant to his communications with counsel by transmitting them over a company email system, as they were subject to the email policy recited above, which permitted the company to examine and disclose such communications at any time.  By such actions, the court held that plaintiff was so careless with these materials that he waived any work product privilege attendant thereto and could not claim their disclosure was inadvertent.

As a result, the Court denied plaintiff’s motion for a protective order, which sought to compel his employer to return these communications with counsel to plaintiff.

The Court granted in part and denied in part an employer’s motion to compel production and inspection of the hard drive of a laptop the company furnished to an employee.  The Court held that the company could inspect the contents of the laptop, and any emails sent by the employee over the company email system, because the company had in place a policy that advised its employees that they had no expectations of privacy therein.  However, the Court held that the attorney client and marital communications privilege protected from disclosure “any web-based generated emails, or materials created by Sims[,] to communicate with his counsel or his wife.”  Said the Court:

[T]o the extent that the laptop contains web-based emails sent and received by plaintiff Sims and any other material prepared by plaintiff Sims to communicate with his counsel, the Court agrees with plaintiff that such information is protected under the attorney-client privilege and the marital communications privilege.  Notwithstanding defendant Lakeside’s policy in its employee manual, public policy dictates that such communications shall be protected to preserve the sanctity of communications made in confidence.