Two Courts Deal with the Privilege Ramification of Employees Using Company Computers

August 30, 2006

Although employees’ use of their employer’s computers usually generates privacy and property issues, courts sometimes analyze the privilege effects of such usage.

In Kaufman v. SunGard Investment Systems, Inc., Civ. A. No. 05-cv-1236 (JLL), 2006 U.S. Dist. LEXIS 28149 (D. N.J. May 9, 2006) (not for publication), the court held that the privilege did not cover communications between an employee and her personal lawyer that she left on the company computer when she returned it to the company after she stopped working there. The court also found that even if the privilege applied, the former employee waived the protection when she did not delete the privileged communications before returning the computer. Just six days later, another court took the opposite approach, in a slightly different circumstance. In Curto v. Medical World Communications, Inc., No. 03CV6327 (DRH) (MLO), 2006 U.S. Dist. LEXIS 29387 (E.D.N.Y. May 15, 2006), the court held that the privilege continued to cover an employee’s privileged communication with her personal lawyer. The court acknowledged that the employee had used a company‑owned computer, but noted that she used it only at her home office, and that it was not connected to the company’s network. The court acknowledged the company’s policy that prohibited personal use of the company’s computers, but noted that the company had not vigorously enforced the policy and therefore could not rely on it.

The Kaufman case represents the majority view, but companies should not automatically assume that the privilege can never protect an employee’s private communication on a company computer.