Employee Email with Personal Counsel: Is there an expectation of privacy and privilege?

When an organization policy says its employees have “no expectation of policy” in the email they send or receive, that could spell trouble for employees who have used their company email to have confidential communications with personal counsel. This is the general principle espoused in a recent case out of the U.S. District Court for the Southern District of New York.

Outside the US, those same employees might very well have expectations of privacy (such as under the EU data privacy directive) and their employers would be forbidden from monitoring or accessing email communications without express permission. Neither extreme is desirable. A new common law ruling in the U.S. is particularly troubling, inasmuch as the court said there is no privilege for employee communications with personal counsel over company email systems.

Where communications are conspicuously identified as “attorney-client” or “work product,” monitoring or surveillance should be restricted and individual’s should be afforded the chance to protect confidential information from employer access. There could be an exception to this rule where the organization has reasonable suspicion that the employee is engaging in conduct criminal in nature or a violation of the federal securities laws.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: