Emails On Employer's Computer Held Not Protected By Attorney-Client Privilege

A New York trial court recently held that emails a doctor sent to his personal lawyer via the computer system owned by his employer hospital were not protected by the attorney-client privilege. The hospital had an email policy mandating that computer and email servers could only be used exclusively for business purposes and warned specifically that employees could not harbor any reasonable expectation of privacy over email sent via that computer system or network. 

That written policy apparently was enough for the court. The doctor/employee, of course, argued that the emails were privileged because they were sent to his attorney in the context of litigation between the doctor and the employer hospital. The court, however, said that the effect of the hospital email policy was to create an environment whereby the employer was "looking over your shoulder" when you are composing email. 

This whole analysis of whether someone harbors a reasonable expectation of privacy or whether it is in itself reasonable to harbor an expectation of privacy all stems from the Fourth Amendment of the United States Constitution in the context of searches and seizures of persons and property. Realistically, an employer should not be able to articulate an email policy as described and then "blow up" the attorney client privilege merely by maintaining that policy. Oftentimes there are no choices. People are at work and they have legal matters to deal with and it is 2008 and email is very often how we communicate. The employer could not intercept a telephone conversation merely by saying that they are "listening in." There is far more involved. In that realm, when the government is conducting a wiretap, a judge must issue an order to do so. In the context of that wiretap, if the listening agents know or come to realize that the person to whom the wiretap is directed is speaking to his attorney, the law requires that they turn off the wiretap device for the pendency of the call. The government can't listen in, but the employer can?

John M. Hanamirian