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Ownership of e-Mail Is Not Clear

By Elise M. Bloom
January 29, 2008
'You've got mail.' Three little words that everyone loves to hear. But in today's society, where more time is spent at work or working remotely than anywhere else, one has to wonder: 'Whose mail is it anyway?' From online shopping to e-vites, almost every employee has used his or her corporate e-mail to send personal communications to friends and family ' despite the company's clear policy to the contrary. In the current litigious environment, what happens when an employee sends personal, allegedly confidential communications from work to his or her attorney or spouse? Can the employer lawfully access those e-mails, or do the attorney-client and marital privileges prohibit the employer from doing so? In answering this question, the key inquiry is always whether the employee had a reasonable expectation of privacy in the e-mails at issue.

The attorney-client privilege has long protected communications between an attorney and his or her client, provided that they are made in confidence and for the purpose of seeking legal advice. Fed. R. Evid. 501; see also, Knepp v. United Stone Veneer, No. 4:06-CV-1018, 2007 U.S. Dist. Lexis 65423 (M.D. Pa. Sept. 5, 2007). The privilege was devised to ensure free and open communication between attorneys and clients. Likewise, the marital confidential communications privilege protects confidential communications made by one spouse to another during marriage and exists beyond divorce. Id. It promotes open and honest communication between spouses, which, in turn, aims to facilitate marital harmony. In 2006, the Federal Rules of Civil Procedure were amended to include the phrase 'electronically stored information,' and, since then, courts have made it clear that the mode of communication does not destroy privilege. Scott v. Beth Israel Med. Center Inc., 17 Misc. 3d 934, (New York Co., N.Y., Sup. Ct. 2007). On the contrary, privilege extends to e-mails and other forms of electronic communication.

So when an employee uses the corporate server or an employer-provided computer to send communications to an attorney or spouse, how do courts determine whether privilege has been waived so that the employer can have free access to those communications? Does it matter if the employee uses a personal e-mail account or personal computer?

In determining the parties' respective rights to communications sent from work, the few courts to consider the issue have generally employed a balancing test, which primarily considers the following factors:

  • Does the employer have an e-mail policy?
  • How are employees made aware of the policy?
  • Is the policy uniformly applied?
  • What precautions, if any, did the employee take to protect the confidentiality of the communication?

Notably, whether the employer pays for the e-mail account is not
dispositive, because an employer does not necessarily 'own' e-mails merely because it pays for the account from which they were sent. Rozell v. Ross-Holst, No. 05 Civ. 2936, 2006 U.S. Dist. Lexis 2277 (S.D.N.Y. Jan. 20, 2006), summary judgment granted in part, denied in part, and objection overruled by 2007 U.S. Dist. Lexis 46450 (S.D.N.Y. June 21, 2007).

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