Employer Policies and Employee Personal Privileged Emails

Death, taxes, and employees sending personal emails via the employer’s email server. We know it happens despite policies preventing or restricting them. These policy violations are mostly benign; for instance, what harm arises from an employee scheduling a personal appointment using her work email address?

The repercussions heighten, however, when the employee sends an email to her lawyer. The situation surfaces when the employee sues his employer, and the employer unearths relevant privileged emails during its investigation. In this situation, the question arises whether the attorney-client privilege protects these emails from discovery. The answer lies in how courts interpret the privilege’s confidentiality element.

Under the common-law definition, the attorney-client privilege protects from discovery-confidential communications between a client and her lawyer made for legal advice purposes. The confidentiality element becomes the focal point in courts’ privilege analysis with most courts, particularly federal courts, ascertaining whether the employee had a reasonable expectation of privacy in sending the email.

This test usually results in a privilege loss if the employer can answer two questions in the affirmative. First, did the employer have a policy explaining that personal emails sent through its email system lack confidentiality and are subject to monitoring? Second, did the employer have the employee sign a statement acknowledging awareness of this lack-of-confidentiality policy? If so, then the employee typically has no reasonable expectation of confidentiality and therefore no privilege protection.

However other courts take a more employee-friendly approach to the confidentiality element. Many states, unlike federal law, house their attorney-client privilege within a set of evidence rules which, as rules tend to do, contain definitions. These definitions include circumscribing a so-called confidential communication in a manner that eviscerates a reasonable expectation of confidentiality.

A recent decision from the Oregon Supreme Court illustrates the divergence between a definition-heavy attorney-client privilege rule and the common-law application employed by federal courts. In that case, a third party sued by a company’s employee subpoenaed the employer company for emails that included privileged communications between the employee and his personal attorney. Oregon’s attorney-client privilege rule defined “confidential communication” expansively, which the court interpreted as creating a presumption of confidentiality, even for emails sent over an employer’s email server.

The court shifted the burden away from the privilege proponent—the employee—to the party seeking the privileged communications. Meeting that burden required evidence showing more than a risk that the employee’s emails sent through his employer’s server were not confidential.

So, what to do given this state of uncertainty? Employers should ensure that they have a written policy explaining that personal emails sent through the employer’s email system lack confidentiality, may be monitored and that the employee should not expect any level of confidentiality. However, the policy is not enough—employers should have the employee admit in writing to knowledge of the policy and search for evidence that personal emails were monitored or accessed.

When challenging a privilege claim, understand the choice-of-law issues at play to determine whether federal or state law applies and the burdens under each. Too many companies and their lawyers neglect this legal aspect and come up short on the necessary proof. Taking these steps will increase the chance of adding “no confidentiality” to the certainty list along with death and taxes.