The Supreme Court recently addressed the challenges created by workplace privacy for public employees in the electronic era. The Court’s decision in City of Ontario v. Quon sidestepped the critical question of whether a government employee has a reasonable expectation of privacy in text messages transmitted on an employer-issued pager, leaving the proper test for a Fourth Amendment violation in this context unsettled. But every member of the Court easily agreed that even assuming that a public employee has a reasonable expectation of privacy in such text messages, the City’s search in this instance did not violate the Fourth Amendment.
Last week, in what appears to be the first instance in which a state supreme court has addressed the issue, the Supreme Court of New Jersey unanimously ruled that the attorney-client privilege applies to email communications between an employee and her personal attorney even when she e-mails her attorney with a personal, password-protected Yahoo e-mail account accessed through a company-provided laptop. This decision should be read carefully when conducting forensic investigations or reviews into company IT systems.
An employee’s messages to his attorney sent via the employee e-mail system, a practice which was against company policy and subject to monitoring by the employer, are not protected by the attorney-client privilege or work product doctrine. Scott v. Beth Israel Medical Center Inc., No. 602736/06, 2007 N.Y. Misc. LEXIS 7114 (N.Y. Sup. Ct. N.Y. Cty Oct. 17, 2007). The court denied the employee’s motion for a protective order barring the employer from viewing his e-mails concerning the instant lawsuit sent to his attorney from his employee account. In finding that the employee waived privilege, the court concluded that the employer had an e-mail policy banning personal use and that the employee, as an administrator, had constructive notice that the employer had the right to monitor e-mail communications over its network. The court also rejected the employee’s work product doctrine argument based upon his attorney’s confidentiality notice e-mail footer, holding that the attorney’s pro forma confidentiality notice at the end of the e-mails was “insufficient and not a reasonable precaution” that would provide a qualified privilege against disclosure.
This case is likely to add fuel to the fire for attorneys challenging an assertion of the attorney-client privilege. Companies should consider adding to their e-mail policies a statement that the use of corporate e-mail to communicate with personal attorneys could result in a loss of any privilege that might otherwise attach to the communication.