Gone But Not Forgotten: When Privacy, Policy and Privilege Collide

Abstract

The use of computers, the Internet, e-mail and other electronic communication devices has been embraced in the workplace. Most businesses have established policies that relate to Internet use and electronic communications, some of which recognize occasional, personal use by employees. Jurisdictions are divided about whether employees give up the protection of attorney-client privilege when they use a company-issued computer to send or receive e-mails. Depending on the underlying electronic communication policy of a company, use of a company computer may diminish the expectation of privacy that an employee reasonably may have. This may lead to a determination that a communication was not made in confidence, or that an electronic communication will lose its privileged character due to waiver. Among the things considered when courts evaluate these issues are the type of e-mail system used, the company policy that is in place, and the notice and enforcement of the policy.

While matters relating to expectation of privacy and waiver seem to be the central focus of much judicial scrutiny, the public’s interest in the policies underlying attorney-client privilege must not be brushed aside. Balancing the public interest in fostering open exchanges between a lawyer and client, an employer’s right and responsibility to control the workplace environment and the factual circumstances surrounding an employee’s exchange of information, protecting privileged communications should carry a heavy weight. Concomitant with this, a lawyer must see that requisite care is taken when communicating with clients and ensure that clients are aware of the perils associated with electronic transmissions in the workplace.

Keywords: attorney-client privilege, electronic communications, email, internet, privacy, employees, employers, workplace

JEL Classification: K29, K49