To: Your Lawyer
Bcc: Your Boss?

To: Your Lawyer
Bcc: Your Boss?

Sending personal e-mails from work might be less personal than you think.

The bankruptcy court for the Southern District of New York concluded in this case that the attorney-client privilege does not apply to a client’s communications with his personal attorney when (1) the client used his employer’s e-mail system to send the communications, and (2) the client could not reasonably have expected the communications to remain private. However,

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the court denied the trustee’s motion for summary judgment because it could not find as a matter of law that the debtor’s employees in this case held an unreasonable expectation of privacy when using their company’s e-mail system for personal matters.

The debtor in this case (“Asia Global”) was a pan-Asian telecommunications carrier. In November of 2002, Asia Global filed a chapter 11 bankruptcy petition. The court, however, converted the case to chapter 7 in June of 2003 and appointed a trustee to oversee the liquidation of Asia Global’s assets. The trustee immediately advised Asia Global’s principal officers (the “Insiders”) to surrender control of the company’s property, including its e-mail servers.

In July of 2003, the Insiders’ personal attorney learned that a number of e-mail messages containing potentially privileged attorney-client communications had been left behind on Asia Global’s e-mail servers. The attorney promptly asked the trustee’s counsel to keep their confidential, and the trustee’s counsel dutifully complied.

Following his appointment, however, the trustee had immediately begun to investigate certain transactions involving Asia Global and the Insiders. To facilitate his investigation, the trustee subpoenaed the Insiders for production of all electronic documents that they had generated or received on Asia Global’s computer systems. Citing attorney-client privilege, the Insiders refused to produce the e-mails sent to their personal attorney, and the trustee moved to compel production. He conceded the e-mails contained attorney-client

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information, but argued the privilege did not apply because the Insiders had sent the communications over Global Asia’s e-mail system.

The court began by noting the attorney-client privilege applies only to confidential communications. “For a communication to be confidential,” the court explained, “the communication must be given in confidence, and the client must reasonably understand it to be so given.” Because the court assumed that the Insiders’ e-mail was otherwise privileged, and that the Insiders subjectively intended for their e-mails to be confidential, its decision turned solely on whether the confidential nature of the Insiders’ e-mails was objectively reasonable.

The court, however, could find no decision discussing the confidentiality of an employee’s e-mails in terms of the attorney-client privilege. The court, therefore, examined the analogous question of an employee’s expectation of privacy in his office computer and his employer’s e-mail system. In determining whether such an expectation is reasonable, the court found the following four factors must be considered: (1) whether the employer maintains a policy banning personal or other objectionable use; (2) whether the employer monitors the use of the employee’s computer or e-mail; (3) whether third parties have a right of access to the computer or e-mails; and (4) whether the employer notified the employee, or whether the employee aware, of the use and monitoring policies.

Put simply:

[T]he question of privilege comes down to whether the intent to communicate in confidence was objectively reasonable. There is a close correlation between the objectively reasonable expectation of privacy and the objective reasonableness of the intent that a communication between a lawyer and client was given in confidence. Accordingly, the objective reasonableness of that intent will depend on the company’s e-mail policies regarding use and monitoring, its access to the e-mail system, and the notice provided to the employees.

Weighing these factors, the court refused to find as a matter of law that the Insiders had eliminated an otherwise existing attorney-client privilege by using Asia Global’s e-mail system. The court did note that third parties had clear access to the Insiders e-mails, because the trustee’s counsel was able to separate them from the rest of Asia Global’s electronically stored information. Furthermore, the court noted there was some evidence of corporate policies limiting use of Asia Global’s e-mail system and notifying employees of Asia Global’s intention to monitor their e-mail communications. However, the Asia Global’s former general counsel denied the existence of such policies, and the Insiders claimed that, even if such policies did exist, they had never received them. Because the evidence did not weigh decidedly in favor of the trustee’s position, the court concluded that the Insiders had not waived their attorney-client privilege.

Patrick J. Ryan is a third-year law student at Seton Hall University School of Law. He has focused much of his training and legal education on bankruptcy and state law insolvency proceedings.

Comments (1):

  1. I wonder if employees have a reasonable expectation of privacy when sending personal e-mail from their personal e-mail accounts on company computers.

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