The Perils of Work E-mail: Protecting the Attorney-Client Privilege
Employment discrimination rears its ugly head in many different ways. Wrongful termination is just as common as an employee who suffers the loss of a promotion due to his or her age, race, or national origin. From a practical standpoint, however, representing a client who was unfairly passed up for a promotion creates a different communication dynamic. Namely, the client in such situations is usually gainfully employed by the same employer against which allegations of discrimination are being lodged. Inevitably, the client and attorney will need to communicate during business hours through e-mail, which may place the attorney-client privilege in jeopardy.
I bring up this topic because the Wall Street Journal Law Blog recently featured a post entitled, Note to Litigants: Don’t Use Work Email to Discuss Your Case. To establish that the attorney-client privilege applies to a communication, the burden rests with the party asserting the privilege to show: (1) the existence of the attorney-client relationship; (2) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (3) that the communications were made in confidence; and (4) that the privilege as to these communications has not been waived.
The WSJ points out the following hypothetical based on the Supreme Court of New York's ruling in Dr. W. Norman Scott v. Beth Israel Medical Center, Inc. et al.:
Plaintiff preparing to bring a lawsuit against his employer corresponds with his lawyer through his work email account. Defendant employer discovers the emails after litigation is filed, and forwards the messages to its in-house counsel. May the litigant rely on attorney-client privilege to keep the emails out of evidence?Unfortunately, as the ruling indicates, the attorney-client privilege would be lost in this hypothetical where the employee has no expectation of privacy as to his or her work e-mail. The expectation of privacy doesn't exist where an employer puts employees on notice that such e-mails are monitored.
In August 2006, Justice Gants of the Massachusetts Superior Court ruled on a more complicated situation in National Economic Research Associates v. David Evans. There, the employee conferred with his attorney concerning his resignation on his company-issued laptop. Unlike the New York case above, however, the employee used his personal e-mail account. Unbeknownst to the employee, all information accessed through the company-issued laptop was captured via a “screen shot” and stored. Using this technology, the company retrieved communications between the employee and his counsel and sought to enter the retrieved e-mails into evidence on the basis that the attorney-client privilege had been waived. The Massachusetts Superior Court denied the employer's request, reasoning that the employee never received notice that his personal e-mail communications would be accessed:
Only after receiving such clear guidance can employees fairly be expected to understand that their reasonable expectation in the privacy of these attorney-client communications has been compromised by the employer.Protecting the attorney-client privilege is an absolute priority. Even where the employer is unsuccessful in introducing private e-mails into evidence, the damage may already be done. The game plan must be kept between the client and attorney.
