Finders/Keepers

The answer to these questions is a resounding “it depends.” In recent years, courts around the country have found themselves grappling with these and other tricky issues at the intersection of technology and the law. The result is a developing body of case law that considers new questions concerning the scope of workplace privacy and the attorney-client privilege.

While the court decisions in this area can be viewed as inconsistent in some ways, these cases highlight an area of increasing concern for employers and provide valuable guidance. No longer should companies, or their lawyers, assume that the mere existence of an employer's policy reserving its right to monitor electronic communications strips those communications of any privilege that would otherwise attach. Instead, motivated by growing concerns surrounding privacy in the Internet age, some courts are subjecting electronic use policies to rigorous analysis. Before those policies can be applied to permit access to personal, privileged e-mails, these courts are now requiring that the policy unambiguously notify employees of the risk that the employer will read their non-business e-mail.