Employee E-mail on Company Equipment - Private or Not?
December 31, 2009
by Michael Fleming
Employers had long relied on a general principle that if an employee has used a company system to send, receive or store a personal e-mail or other electronic communication that the communication would be subject to the employer's right to review and disclose the communication even in the face of privacy laws.
In recent years those simple rules have been breaking down. Employers may need to consider that employees who are using company-owned systems for their personal communications have a "reasonable expectation of privacy" in those communications (even in the face of policies declaring employees have no privacy rights in those communications).
In a recent instance, a federal prosecutor's e-mails to his personal attorney, sent through his U.S. government e-mail account, were found to be protected by attorney-client privilege and therefore not discoverable in a litigation matter. In that case, because the employees of the office were allowed to use the government e-mail system for personal matters, a court found that the employees, including the prosecutor, could expect that these communications would be private. Because of this, the court held that the employee's private e-mails would remain protected by the attorney-client privilege.
In a different case, a court reasoned that an employer's policy was ambiguous when it simultaneously claimed that all e-mails were automatically the property of the employer while also allowing that "occasional personal use is permitted." The court held that, given that ambiguity, the employee could reasonably believe that her "personal use" e-mails to her lawyer would be subject to normal rules of privacy, and therefore that her attorney-client privileges were preserved.
However, in another recent case, an employee's e-mails sent to her attorney from her work e-mail account were not protected by the attorney-client privilege. The court reasoned that the employee had received notice of the employer's policy banning personal use of e-mail and the notice about the employer's monitoring of e-mail. Therefore, the court held it was unreasonable for the employee to have an expectation of privacy regarding such communications.
The United States Supreme Court is taking up the issue, and has said it will hear an appeal of a similar question arising out of a California matter involving an employee's text messages sent via the employer's cell phone. So, the law remains in flux while the Supreme Court decision is pending.
Considering that few employers can realistically maintain an absolute ban on the use of employer-provided e-mail for any personal communications, most employers need to consider that employee personal communications on the company e-mail system may be protected by expectations of privacy and the laws that go with those expectations. Good risk planning should allow for that result. Employers should consider how private data might be segregated or protected, particularly in litigation contexts where e-mails may be disclosed outside of the company. Advance consideration of the problem can lead to less expensive and less disruptive processes when an electronic discovery request arrives.
On the other hand, employers who wish to maintain their policies banning personal use of e-mails should consult with knowledgeable employment law attorneys regarding the best means to carry those policies forward in light of the possible risks of non-enforceability as the law may change.
- Michael Fleming and Molly Eichten are members of the Larkin Hoffman Daly & Lindgren Ltd. Intellectual Property, Technology and Internet Practice.