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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:
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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