Generally, a confidential email sent to one’s personal attorney is protected under the attorney-client privilege. But what if the communication is sent using a business email account? Will a corporate policy entitling the company to access “all communications” sent on work computers undermine the privilege? Followers of this blog will recall, among other posts, our detailed recap of the extensive discussion of this issue at our Annual E-Discovery Conference in the wake of the New Jersey Supreme Court’s decision in Stengart v. Loving Care Agency, Inc., upholding the privilege where the employee used a company computer to communicate with her attorney via a personal password-protected internet based e-mail account, and sanctioning the employer’s attorneys for failing to turn over the protected communications. Readers may also recall our discussion of US v. Hamilton, where the United States Court of Appeals for the Fourth Circuit held that a husband waived the marital communications privilege when he sent messages from his work email account to his wife, but took no steps to protect their sanctity. Since those decisions, courts nationwide have continued to wrestle with these issues. Most recently, a Delaware Court held an employee waived the attorney client privilege where he used his work email account to email his lawyer with knowledge of the company’s policy establishing its right to access all communications on work computers.
In re Information Management Services, Inc. Derivative Litigation, Consol. C.A. No. 8168-VCL (Del. Ch. Sept. 5, 2013) involved a derivative action brought by two family-owned trusts (“Plaintiffs”) who alleged the company’s officers breached their fiduciary duties by mismanaging company funds. During discovery, Information Management Services, Inc. (“IMS”) advised Plaintiffs that two of the officers (the “Officers”) used their work email accounts before and after the filing of the lawsuit to communicate with their personal lawyers. Plaintiffs requested the emails be produced, but the Officers refused, citing the attorney-client privilege. Plaintiffs claimed that the Officers’ waived the privilege when they used work email accounts through the company servers. Plaintiffs also cited the company’s written policy notifying employees of its unrestricted access to communications sent through company computers and that personal use should not be considered private.
The court considered whether the emails constituted “confidential communications” under Delaware Rule of Evidence 502 (governing attorney-client privilege), which protects as confidential communications “not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.” The Court employed the following four factor test to determine whether the Officers had a reasonable expectation of privacy in work emails: 1) is there a company policy banning “personal or other objectionable use,” 2) does the company monitor employee email or computer use, 3) do third parties maintain a right of access to email or the computer, and 4) was the employee notified by the company, or was the employee otherwise aware of the use and monitoring policies?