Starting 10-15 years ago, many courts addressed corporate employees’ privilege claims for communications with their personal lawyers (usually employment lawyers) using their employers’ email infrastructure. Most states (other than New Jersey), eventually settled on the standard articulated in In re Asia Global Crossing, Ltd., 322 B.R. 247, 256-61 (Bankr. S.D.N.Y. 2005) to reject such privilege claims – as long as the company widely circulated a personnel policy explicitly warning that such communications could be monitored, and did not deserve confidentiality or privilege protection.
The cases dwindled after that, and the matter seemed largely settled. But in Kreuze v. VCA Animal Hospitals, Inc., Civ. A. No. PJM-17-1169, 2018 U.S. Dist. LEXIS 66667 (D. Md. Apr. 20, 2018), the court protected such emails as privileged. Among other things, the court noted that: (1) the defendant’s personnel policy “does not affirmatively ban personal use by its employees” but instead only warns them to keep such use “to a minimum” (id. at *3); (2) defendant “did not actively monitor Plaintiff’s email account during or after her employment,” but instead merely reserved the right to do so (id. at *4); (3) “Defendants do not claim that they took affirmative steps to inform employees of the policies in place, besides providing a copy of VCA’s Policy” – although noting that plaintiff acknowledged the personnel policy (id. at *7); and (4) plaintiff’s “acknowledgment was signed in 2009, close to five years prior to the sending of the emails.” Id. at *8.
A corporation facing such a demanding application of the Asia Global standard will have a difficult time winning a privilege fight with a current or former employee. Corporations and their lawyers should monitor the case law for a possible resurgence of such pro-employee decisions.