Courts Continue to Disagree About Privilege Protection for Employees’ Personal Privileged E-Mails Housed on Their Employer’s Server

January 27, 2010

An increasing number of courts have dealt with the privilege ramifications of company employees using their work computers (and their employer’s servers) for personal privileged communications. As in other areas, courts line up on both sides of this issue.

In Alamar Ranch, LLC v. County of Boise, Case No. CV-09-004-S-BLW, 2009 U.S. Dist. LEXIS 101866, at *10 (D. Idaho Nov. 2, 2009), the court held that a government employee waived the privilege by using her employer’s e-mail for personal privileged communications — noting that she “did not attempt to protect the confidentiality of the messages by using a web-based password-protected e-mail account.” After describing the employer’s e-mail policy, the court held that “[i]t is unreasonable for any employee in this technological age” to believe that such e-mails would be kept secret from the company. Id. at *11. Less than two weeks later, another court took the opposite approach — pointing to: (1) the employer’s policy that “does not expressly prohibit the employees from using their company computers to conduct personal legal matters”; (2) the employer’s failure to actually monitor employee computer hard drives or e-mail drives despite claiming that it had the right to do so; and (3) the fact that the documents at issue “originated from [the employee’s] computer hard drive, not from his intranet or internet usage.” United States v. Hatfield, No. 06-CR-0550 (JS), 2009 U.S. Dist. LEXIS 106269, at *30, *31 (E.D.N.Y. Nov. 13, 2009).

Lawyers should continue to monitor this debate. Ironically, some courts reject an employer’s contention that the privilege does not apply unless the employer prohibits employees’ personal use of company computers and actually monitors employees’ e-mail — which many employers choose not to do.