Court Says Personal Email From Work Can Still Be Protected Attorney-Client Communications

from the well-that's-interesting dept

We've seen plenty of cases where courts have said that an individual has no expectation of privacy on emails sent from work, and therefore cannot protect those emails. However, in an interesting new ruling (found via the EFF), a court found that personal emails sent from work computers can still be considered privileged and confidential as an attorney-client communication.

Of course, there's a bit more to this case that makes the facts a bit different and makes me wonder if it would apply in other circumstances. In this case, it dealt with a federal prosecutor who was fired, and is trying to claim that the firing was for his whistle-blowing. He was trying to access the emails of a US Attorney that he believes will reveal why he was fired. So it wasn't a case of a company trying to review the email (which is normally the case in these types of lawsuits). And, as such, it makes sense. The attorney-client privilege should be seen as one that has an incredibly high barrier. Any weakening of that privilege -- such as by saying that if you email your lawyer from work, it doesn't exist -- would be troubling. But what would be more interesting is what would happen in a lawsuit where it was the employer looking at the material. If a company has a regular program of recording and examining employee email (as many do), then how would the issue be resolved? It would seem that, in such circumstances, it would make a lot less sense to consider the content protected, since the employer is not asking for it, but already has access to it.

In related news, however, the Supreme Court will be hearing a case that looks at whether or not your text messages are private, even if sent from company mobile phones.

Filed Under: email, privacy, text messages, work

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  1. icon
    BobinBaltimore (profile), 15 Dec 2009 @ 5:41am

    Interesting but not Generally Applicable

    Mike, very interesting case, but I agree with you that it is likely not applicable to general corporate doings. I have been AMAZED at the personal crap people run across corporate messaging systems and store on file servers. When a company bumps into that during the course of, say, implementing a litigation-related data hold or investigating an HR complaint, it just creates problems for everyone involved. I doubt the attorney-client argument would hold much water if the discovery by corporate folks was an incidental result of legitimate activity, especially if the company has a good acceptable use and information security policy.

    I am curious about this comment: "If a company has a regular program of recording and examining employee email (as many do)..." Where do you get this impression that "many" companies "regularly" examine employee email? Record it, yes, though a better term is "archive" which is a legal requirement in many regulated industries. But examine content? Sure there are products that do automated compliance checks for PCI, HPPA, etc, but I don't think that's what you mean (and it's not the impression you leave). Do you really think companies have multitudes of email admins and lawyers just randomly combing user email, trolling for whatever they can find? Of course that HAS happened, but "many" and "regularly?" Definitely contrary to what I've observed in my Fortune 500-ish company career.

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