Abstract

http://ssrn.com/abstract=2129523
 
 

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Against Employer Dumpster Diving for E-Mail


Michael Z. Green


Texas A&M University School of Law

August 14, 2012

South Carolina Law Review, Forthcoming

Abstract:     
Recent attorney-client privilege cases offer a modern understanding of reasonable expectations of employee privacy in the digital age. Employees have increasingly made electronic mail communications to their attorneys via employer-provided computers or other digital devices with an expectation of privacy and confidentiality. Historically, courts have summarily dispensed with these matters by finding that an employer’s policy establishing clear ownership of any communications made through employer-provided devices eliminates any employee expectation of privacy in the communications and waives any viable privacy challenges to employer review of those communications. Nevertheless, within the last couple of years, several cases involving employee assertions of attorney-client privilege protection in e-mails sent on employer-provided devices suggest new thoughts about reasonable workplace privacy expectations.

As employees must communicate through employer-provided digital devices day and night, these attorney-client privilege cases help expose the fallacy of assuming employees cannot reasonably expect that e-mails will remain private if employer policies mandate the communications are not private. These new cases and related ethics opinions about privileged e-mail offer a modern lens through which one may now view employee privacy expectations under a new paradigm that replaces the façade of assuming employees have no expectation of privacy due to employer policies.

Digital age expectations regarding employee use of smart cellular phones, portable laptops, and other employer-provided devices to make communications beyond standard work hours leaves little expectation or opportunity for employees to reasonably communicate privately and confidentially by any other means than through these employer-provided devices. As a result, this article asserts that employer efforts to mine their devices for employee e-mails after disputes ensue comprises a form of electronic dumpster diving that should not be tolerated by courts, legislatures, or attorney ethics committees.

Number of Pages in PDF File: 39

Keywords: employeee, privacy, ethics, attorney, e-mail, privilege

JEL Classification: K31, M12, M14

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Date posted: August 15, 2012 ; Last revised: January 3, 2013

Suggested Citation

Green, Michael Z., Against Employer Dumpster Diving for E-Mail (August 14, 2012). South Carolina Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2129523 or http://dx.doi.org/10.2139/ssrn.2129523

Contact Information

Michael Z. Green (Contact Author)
Texas A&M University School of Law ( email )
1515 Commerce Street
Fort Worth, TX 76102
United States
817-212-4140 (Phone)
817-212-3965 (Fax)
HOME PAGE: http://law.tamu.edu/Faculty/FacultyProfiles/MichaelZ.Green.aspx
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