Another Court Discusses Employees’ Communications with a Personal Lawyer on a Company-Owned Computer

November 14, 2007

Many companies warn their employees that they cannot expect confidential treatment of communications using company-owned computers. Surprisingly, some courts require very elaborate warnings or even click-through disclaimers before denying an employee’s privilege claim.

In Banks v. Mario Industries of Virginia, Inc., 650 S.E.2d 687 (Va. 2007), a jury found a former employee liable for tortiously interfering with a company’s business. On appeal, the former employee claimed that the court erred in allowing the company to introduce a memorandum that the then-employee prepared on a company-owned computer and took to his personal lawyer to obtain legal advice. The employee had deleted the memorandum, but the company’s forensic computer expert had retrieved it. The Virginia Supreme Court pointed to the company’s employee handbook, which “provided there was no expectation of privacy regarding [the company’s] computers.” Id. at 695. The court held that the trial court did not err in admitting the memorandum, and upheld the jury’s verdict.

Corporations definitely should include such a provision in their employee handbooks, and may want to provide even more specific warnings to their employees about the lack of confidentiality when the employees use company computers.