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The Four Factor Test to Determine Whether Corporate Email is Protected by Attorney-Client Privilege

The right of attorney-client privilege remains one of the most revered privileges that the American judicial system bestows upon clients as it enables any person to communicate open and honestly with his/her attorney. Now this right is under scrutiny as keeping communications between a defendant and his/her attorney has become difficult to achieve due to the increased role that email plays as a form of primary communication medium between them.

The attorney-client privilege is an important part of any court case but as email has grown in importance, so has the probability that the attorney-client privilege can be compromised. Therefore it behooves companies to understand what role their corporate networks play in preserving and/or undermining this privilege. It also important to understand how best to protect the company when faced with an eDiscovery involving employees and any email correspondence that occurs between them and their attorney while at work.

This is highlighted by two recent court cases that lay out several key rulings regarding privilege and corporate email systems. There are specific differences in these two cases but both share one aspect in common: employee use of a company computer while at work.

First, a case that was closely watched in the past is Stengart v. Loving Care Agency. In this case the New Jersey Superior Court ruled that because an employee used her company computer to access her web-based Yahoo email account, she waived her right to attorney-client privilege. In this particular case, the employee emailed her attorney during business hours about bringing hostile work environment claims against the employer but did so while still at work and in the employ of the company.

The court ruled that the employee waived privilege by using the company’s laptop on company time and referenced the company’s handbook that prohibited the use of the company’s email system for “solicitation or outside business ventures.” This ruling showed when a company has an email policy in place they could claim that the employee did not have attorney-client privilege since the employee was using the corporate network to send and receive emails.

However it does not end there. On appeal the appellate court reversed this decision and ruled that in fact the emails were privileged, and ordered all emails deleted. The court also ordered a hearing for appropriate sanctions and was specific in citing that “an employer’s rules and policies must be reasonable to be enforced” and must “concern the terms of employment.”

The court continued by explaining that although the employer’s policy provided that email was part of the employer’s business records and was “not to be considered private or personal to any individual employee,” employees were permitted under the policy to make “occasional personal use” of the employer computers. This provided a reasonable expectation of privacy regarding the occasional personal use, especially regarding communications between an attorney and their client.

Alamar Ranch LLC, v. City of Boise. In this case the employee is again using a work computer for communication with his/her attorney but in this circumstance the employee used the employee’s work email address. To establish attorney-client privilege and if it was waived in this case, the court turned to a four factor test:

  1. Is there a company policy banning personal use of email?
  2. Does the company monitor the use of its email?
  3. Does the company have access to all emails?
  4. Did the company notify the employee about these policies?

In this case the company’s policies and procedures stated, “All emails become company property, they will be monitored, stored, accessed and disclosed by the employer, and should not be assumed to be confidential.

Therefore the court ruled that the emails were not confidential and stated it was “…unreasonable for any employee in this technological age–and particularly an employee receiving the notice Kirkpatrick received–to believe that her emails, sent directly from her company’s email address over its computers, would not be stored by the company and made available for retrieval.”

There are two distinct differences between these two cases and why the courts found as they did. First, in the case of Stengart, the company’s computers and network were used but not its email system. As highlighted by point #3 in the four factor test, the company’s email domain was not the primary email system used. Instead it was the client’s 3rd party Yahoo webmail address that was accessed and used to communicate with her attorney.

Also in the Stengart case, the company allowed periodic personal use of the corporate network which invalidated its claim that it banned the personal use of email since email could be accessed via the web. These are important distinctions and one that companies must understand.

The four factor test to establish attorney-client privilege coupled with the Alamar Ranch and Stengart rulings provides some valuable insight into how companies can respect client-attorney privileges while still protecting themselves. Email archiving and management technologies such as Estorian’s LookingGlass allows companies to meet both the letter and spirit of the law of attorney-client privilege such as it applies to e-mail.

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