Employee Communications with Attorney on Company Owned Accounts Are Not Privileged

By Cameron G. Shilling (originally published 10/18/2013)

Emails, texts and other communications that an employee has with an attorney using a company account may not be privileged, according to the most recent decision on the issue from a court in Delaware. That state has now joined a growing list of others (Arizona, California, Florida, Idaho, Illinois, New Jersey, New York, Oklahoma, Pennsylvania, Texas, Washington, and West Virginia) where courts have found that an employee waived privilege by communicating with an attorney on a company email account.  However, some courts distinguish between an employee’s communications on a company account, and communications on a personal account using a company electronic device. Thus, a company should ensure  that its technology use policy covers both company accounts and devices, and that the company can permissible review communications between an employee and attorney before doing so.

 The Delaware court adopted a well-recognized four-part test to determine if an employee waived privilege by using a company account or device to communicate with an attorney:

  • Did the company have a policy informing employees that personal communications on company accounts or devices are not private?
  • Did the company monitor and review, or inform employees that it may monitor and review, such personal communications?
  • Did the company have a right and ability to access company accounts and devices?
  • Did the company notify employees, or was the employee otherwise aware, of the company’s policy?

In addition to the states listed above, courts in other states (including Connecticut, the District of Columbia, Maryland, Minnesota, and Kansas) have applied this four-part test, but found on the facts of the particular case that the company did not satisfy each element of the test, and thus that the employee did not waive privilege.

While courts are relatively settled on applying that test to company accounts, there is a split of authority concerning a company’s right to review an employee’s communications with an attorney using a personal account accessed on a company device.  For example, an employee may communicate with an attorney on a webmail account (such as Gmail or Yahoo!) using a company computer, laptop, tablet (e.g., iPad), or smartphone (e.g., iPhone, Droid or Blackberry).  The company may be able to recover such communications from the device if the webmail account was configured to create a backup file on the device, or if the webmail data can be forensically extracted from the “residual” space of the hard drive.

Courts in three states (New Jersey, Massachusetts, and Washington) found that such webmail communications remain privileged.  Two other courts (New York and Washington) disagreed.  They found that, while the differences between a company email account and a personal webmail account accessed on a company device may affect the outcome under the four-part test, the test still should be applied to determine whether the employee waived privilege.

An employee’s communications on company accounts and devices (including with attorneys) can be a treasure trove of valuable evidence.  To ensure that the company has the best possible right to review such communications, it should adopt a technology use policy that appropriately informs employees that all data created, stored, sent or received on a company account or device is the property of the company, and may be monitored and reviewed by the company at any time and for any reason, and therefore that employees cannot expect any such data to be private or confidential from the company.  The policy should be sent to all employees, and each employee should acknowledge that he or she received, reviewed, and will comply with it.  Companies should behave in accordance with the policy, and refrain from doing anything that may lead an employee to expect privacy with respect to such data.  Finally, when a company encounters employee communications with an attorney on a company account or device, it should ensure that it has the right under applicable law to review such communications before doing so.

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