Attorney-Client Privilege and Employees' Personal Use of Employer Hardware or Software in the United States

This post was written by Lisa M. Carvalho, Lucas Liben and George M. Linge.

This may be one of the abiding truths of the 21st Century: the pervasiveness of modern communication technology has revolutionized how business is conducted, law is practiced, and life is lived. Nevertheless, courts remain protective of communications between an attorney and his or her client almost without regard to the form that communication takes.

Since the middle of the past decade, courts have faced the question of whether the attorney-client privilege can be abrogated when an employee uses employer-provided communication technology to email the employee’s personal attorney. Courts examine a variety of factors to answer this question, including:

  • Whether the employee was operating an employer-owned computer or his or her own
  • Where the computer was located
  • Whether the email was transmitted through a company account or a personal account such as Gmail, Yahoo or Hotmail
  • Whether the employee’s personal email account was password-protected. Perhaps most importantly, courts look to the language of the employer’s policy on email usage, particularly the policy’s stance on personal use, monitoring of email accounts and web activity, and retrieval of information.

Employers must decide whether the advantage of possibly accessing communications between a former employee and his or her counsel outweighs the disadvantages associated with the kind of communications policy necessary to abrogate attorney-client privilege. On the one hand, an employer's interests in information security and full control of its systems mitigates in favor of its having fully transparent access to its employees' electronic communications on the employer's systems, and would have the incidental benefit of possible access to employee communications that are against the employer's interest. On the other hand, an employer may wish, in some limited fashion, to be sensitive to its employees' privacy rights in the context of today's mobile workforce, and may choose not to exert an aggressive information security policy that would go so far as to permit the invasion of the attorney-client privilege.

To read more about the recent rulings and the two-part rule that seems to be emerging, please click here.

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