In U.S. v. Hamilton, the United States Court of Appeals for the Fourth Circuit found that a husband who sent messages from his work email account to his wife, yet took no steps to protect the sanctity of those emails, waived the marital communications privilege, thus subjecting the emails to disclosure during discovery. This case serves as an important reminder that employees do not necessarily enjoy an expectation of privacy in the emails they send from their work accounts or while using their employers’ computers.
The defendant in Hamilton, who was a state legislator and simultaneously worked for a public school system, was convicted of bribery and extortion. The defendant’s trouble came when he provided legislative assistance to a university in exchange for employment. In the time between his initial meetings with university officials and the employment offer, the defendant exchanged emails with his wife regarding their financial situation and the salary he sought from the university. In that same time span, the defendant also exchanged emails with a dean of the university pertaining to his potential employment and legislation he would initiate that would be favorable to the university. All of these emails were sent to or from the defendant’s workplace computer through his work email account.
On appeal, the defendant argued that the Trial Court erred by admitting into evidence incriminating emails he had sent to his wife. The defendant claimed that the marital communications privilege, which generally provides that private communications between spouses are confidential, protected the emails from disclosure. The Fourth Circuit affirmed, relying in large part on the employer’s written computer policy. The policy stated that employees had “no expectation of privacy in their use of the Computer System” and that all information “created, sent, received, accessed, or stored . . . [was] subject to inspection and monitoring.” Although the defendant argued that the emails were sent before the computer policy was enacted, the Court found that he waived the marital communications privilege because he took no steps to protect the previous emails even after the computer policy was enacted.
Even though Hamilton is not binding outside the Fourth Circuit, the opinion may nonetheless be viewed as conflicting with governing law in other states, including New Jersey. As readers of this blog may recall from our prior discussion of the decision in Stengart v. Loving Care Agency, Inc., the Supreme Court of New Jersey held that an employee’s emails with her attorney, though sent from her work computer, were protected by the attorney-client privilege and therefore did not have to be disclosed to her employer, whom she accused of discrimination. The Stengart decision may, however, be distinguished from Hamilton on several grounds. First, unlike the emails in Hamilton that were sent from the defendant’s workplace computer through his work email account, the emails in Stengart were sent from a personal, web-based, password-protected email account. Second, in contrast to the clear “no expectation of privacy” policy in Hamilton, the employer’s policy in Stengart regarding personal email accounts was obscure. Finally, the privileges at issue were different. In Stengart, the New Jersey Supreme Court opined that the public interest in attorney-client privilege is of such importance that waiver should not easily be inferred. It is possible that the New Jersey Supreme Court might not accord the marital privilege the same level of sanctity. In any event, although the Hamilton and Stengart courts reached what may be viewed as divergent conclusions, both sought to balance the terms of the employer’s policy with efforts by the employee to maintain privacy, in addition to affording deference to traditionally privileged communications, such as those between attorney and client or husband and wife.
With the proliferation of personal devices, such as smart phones and tablets, employers and employees should be aware that communication privileges can be waived when sent through non-protected media. To avoid confusion, employers ought to have in place clear, comprehensive information technology policies. Employers should also consider encouraging their employees to engage in personal communications using only personal devices rather than employer-owned equipment. If employers are successful in convincing their employees to abide by clear information technology policies, they will reduce confusion in the workplace and avoid discovery disputes in the event that litigation between employer and employee unfortunately comes to fruition.
Kevin G. Walsh is a Director in the Gibbons Business & Commercial Litigation Department. Marc D. Bianchi, an Associate in the Gibbons Business & Commercial Litigation Department, co-authored this post.