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 (1) whether the employee was operating an employer-owned computer or his or her own; (2) where the computer was located; (3) whether the email was transmitted through a company account or a personal account such as Gmail, Yahoo or Hotmail; and (4) 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.

While jurisprudence on this issue spans a number of jurisdictions, a two-part rule seems to be emerging. First, e-mails sent from private e-mail accounts, regardless of the machine used to access those private accounts, will remain privileged. See Stengart v. Loving Care Agency, Inc., 990 A.2d 650, 665 (N.J. 2009); Curto v. Medical World Communications, Inc., 99 Fed. Empl. Prac. Cas. 298 (E.D.N.Y. May 15, 2006); National Economic Research Associates v. Evans, Mass.L.Rptr. No. 15 (Mass. Super. Ct. Sept. 25, 2006). However, if:

• the communications are sent through a company email account;
• the employer policy specifically prohibits the use of company computers for personal purposes; and
• the employer policy informs the employee that computer usage will be monitored;

courts may refuse to find those communications privileged. See Holmes v. Petrovich Development Co., LLC, 2011 Cal. App. LEXIS 33 (Jan. 12, 2011); Scott v. Beth Israel Medical Center, Inc., 847 N.Y.S.2d 436 (N.Y. Sub. Ct. 2007).

In the recent Holmes case, the California appeals court considered an employee who used a company computer and a company email account to communicate with her personal attorney regarding a potential employment lawsuit against her employer. The employer policy at issue stated that computers were only for company business and could not be used for personal email. Holmes at *2. Employees were told that work computers would be monitored and that employees "ha[d] no right of privacy with respect to [their usage of employer computers]." Id. Instead, the employee was told that "email is not private communication, because others may be able to read or access the message. Email may best be regarded as a postcard rather than a sealed letter...." Id. at *4. As a result of these warnings, the California appeals court concluded in Holmes that the employee's use of a company computer and a company email account was "akin to consulting her lawyer in her employer's conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him." Id. at *3. Therefore, the court found that the employee's emails with her lawyer were not privileged. Id. at 48-49.

As evidenced in Holmes, an employer must maintain a firm grip over the use of company communication devices and accounts in order to abrogate the privilege attached to communications between employees and their personal counsel made via those devices and accounts. Indeed, as the New Jersey Supreme Court has concluded, even the allowance of "[o]ccasional personal use" can lead to a finding of privilege. See Stengart at 657, 663. Of course, adjusting company policy to forbid personal use of company machines and email accounts, and to provide for monitoring of these machines and accounts, can cause uneasiness among current or prospective employees. As the courts realize, despite essentially calling for its implementation, "a zero-tolerance policy can be unworkable and unwelcome in today's dynamic and mobile workforce...." Id. at 663. Thus, each employer must decide for itself 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.

Client Alert 11-055