Can Company Executives Use a Company-Owned E-mail System for Privileged Communications with their Private Lawyers?

July 6, 2005

In addition to sending and receiving jokes and other personal communications, some company executives use their employer’s e-mail system to communicate with their personal lawyers. If the company and the executives become adversaries, can the executives ever claim privilege protection for such e-mails?

In In re Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005), Asia Global Crossing’s bankruptcy trustee sought discovery of e-mail message traffic between several company executives and their personal lawyers, claiming that all company employees had been warned that the e-mail system belonged to the company. The court found that the company had not clearly enough warned executives that they could not use the e-mail system for personal communications. The court noted that “at log on, some business computers, including those used by this Court’s personnel, warn users about personal use and the employers’ right to monitor.” Id. at 261 (emphasis added). The court found that the company executives could withhold from the trustee the e-mail communications with their personal lawyers.

Not every court would be so generous, but this decision highlights the risk that companies run by not using warnings about their e-mail systems that courts themselves use.