Domestic Diversions

Can your employer monitor your email?

The ABA Litigation News Online reveals a problem with using your employer-provided email address. Your email–even to your attorney–may not be private, confidential or protected.

Ruth E. Piller writes (excerpt):
Employees who believe their email communications with their attorneys are privileged may actually be waiving the attorney-client privilege each time they send or receive email via computers owned by their employer, according to a growing body of law.

For example, in Scott v. Beth Israel Medical Center, a New York trial court recently held that emails that a physician sent to his personal attorney via a computer system owned by his employer were not protected by the attorney-client privilege. The physician was employed by the defendant hospital, which had an email policy mandating that computer and email systems could be used solely for business purposes and warning that employees had no expectation of privacy in any communication that was created, received, saved, or sent using the hospital’s computers.

The physician argued the emails were privileged because they pertained to ongoing litigation between him and the defendant hospital. However, in rejecting the physician’s privilege claim, the court stated that the “effect of an employer email policy, such as that of [Beth Israel], is to have the employer looking over your shoulder each time you send an email. In other words, the otherwise privileged communication between [the plaintiff and his personal counsel] would not have been made in confidence because of the [Beth Israel] policy.” The court added that the physician had no reasonable expectation of confidentiality because the hospital had published a “no personal use” email policy, the hospital reserved the right to monitor all emails, and the physician knew of these policies.

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