Attorney-Client Communications Sent Over Employer E-Mail Systems May Not Be Privileged
Published by Privacy & Data Security Law Journal
April 2008
Attorney-Client Communications Sent Over Employer E-Mail Systems May Not Be Privileged
In several recent decisions, courts in New York have concluded that e-mail communications with an attorney or spouse were not privileged because they were sent from a work-issued computer or e-mail account. Prior opinions addressing this issue have generally refused to eliminate privileges simply because a person communicates over a work-issued computer or e-mail account. While it is too early to tell whether these recent cases are indicative of a sea change in the law of privilege, at a minimum they demonstrate an increased willingness on the part of courts to eliminate privileges in cases where an employee knows or has reason to know - by virtue of an employer policy or flash-screen notice - that e-mails sent over a work-issued computer or e-mail account are not confidential. This article examines these recent cases and the prior law addressing these issues, and it offers suggestions and observations for attorneys and business people who may be impacted by these decisions.