Increasingly, courts are faced with the question of whether an employee can claim attorney-client privilege with respect to email correspondence captured by an employer's computer or computer system. Indeed, we have had occasion to discuss these issues before, most recently in our August 2010 Employment Law Update. See A Split of Authority Regarding the Confidentiality of an Employee's Personal Emails on a Company Computer , Employment Law Update, Aug. 2010, available at http://www.kramerlevin.com . Currently, there seems to be a burgeoning consensus that an employee cannot assert privilege over emails associated with a company-provided email account when the employee has notice that the company may monitor email usage.
The Holmes court found Stengart inapplicable, noting that the Holmes plaintiff used a company-provided email and the employer's handbook explicitly prohibited personal email activity using company resources, notified employees that emails were subject to monitoring, and stated that emails were not private. Instead, the court found the plaintiff's email correspondence to be similar to that of the plaintiff in Scott v. Beth Israel Med. Ctr., Inc ., 17 Misc. 3d 934, 847 N.Y.S.2d 436 (Sup. Ct. N.Y. Cty. 2007). In Scott , Justice Ramos ruled that the plaintiff could not claim privilege over email correspondence sent on his employer-provided email account because he knew the employer's policy reserved use of the account for business purposes only, noted the employer's ownership of the contents of the account, and reserved the right to access all communications associated with the account.
As discussed in our August 2010 Employment Law Update, both Scott and Stengart turn on the particular language of the employer's policies. Courts focus on whether the employee had a reasonable expectation of privacy and consistently inquire into (i) whether the employee used an email address and account provided by the employer and (ii) what the employer's policy disclosed about monitoring company-owned resources. As in Holmes , an employee who uses a company-provided email account and who is notified that the employer may monitor the contents thereof has an uphill battle in seeking to assert privilege over emails associated with that account.
A more difficult case is presented where, as in Stengart and National Economic Research Assocs. v. Evans , 21 Mass. L. Rptr. 337, 2006 WL 2440008 (Super. Ct. 2006), the employer cannot clearly establish policies granting an unfettered right to access the employee's emails. In both Stengart and Evans , the employer's policy manual notified employees that their work-issued email was subject to monitoring but did not clearly address the right to access emails from personal accounts. As the Evans court noted, "many computer users do not know that the content of such [web-based] emails could be stored on their computer hard drives as temporary internet files." On the other hand, emails found as temporary internet files may not be privileged where an employer has explicitly notified employees that information sent over the internet is monitored. See, e.g., Long v. Marubeni America Corp., No. 05 Civ. 639, 2006 WL 2998671 (S.D.N.Y. Oct. 19, 2006).
Employers should consider the following when drafting their electronic communications policies in order to cast the widest discovery net:
• Use plain language. If a policy is overly technical, and consequently unclear as to what an employer is monitoring, an employee may be able to successfully argue that he or she had a reasonable expectation of privacy.
• Expressly define terms. The Stengart court faulted the defendants for using terms like "email system" and "media systems and services" without defining those terms.
• Claim an ownership interest. Expressly state that the firm owns all documents created on or using firm resources.
• Tell employees what to expect. Describe who will have access to company-issued email and what information is captured by system-monitoring or surveillance.
• If personal use of employer resources is permitted, notify employees of what electronic information is captured and monitored, including a specific reference to temporary internet files.
• Favor more information, rather than less. For example, consider whether to specifically address the treatment of both firm-owned and private email accounts.
Kevin B. Leblang heads Kramer Levin's Employment Law department and concentrates exclusively on representing management on employment law litigation and advisory matters. Robert N. Holzman concentrates exclusively on representing management in employment law matters. He counsels employers regularly regarding the full range of issues that touch on the employment relationship.