Attorney-Client Privilege: Is Your Employer Looking Over Your Shoulder Each Time You Send an Email?

Attorney-Client Privilege: Is Your Employer Looking Over Your Shoulder Each Time You Send an Email?

Does a client forfeit the attorney-client privilege by sending an email to his attorney from his computer at work?

A New York court found that an email between a physician and his personal attorney sent on the hospital’s email system was not privileged. Similarly, courts in California and Idaho have found that emails are not privileged when the employees are put on notice through a consistently enforced policy or employee handbook.

However, in Stengart v. Loving Car Agency, Inc., the New Jersey court held that an employee could claim privilege over communications sent to his lawyer on his employer’s computer system. The employee used her password-protected, personal email account, and the company failed to show that the employee knew the company occasionally reviewed the computer system.

The courts’ analysis tends to focus on two things: (1) Whether the employee’s expectation of privacy in the communications was reasonable based on any limitations outlined in company policies or handbooks, and (2) Whether the employer consistently enforced the policy.

 

As the court stated in Scott v. Beth Israel Med Ctr., these cases serve as a reminder that many work policies are equivalent to your “employer looking over your shoulder each time you send an email.”