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.

See KEVIN LONG and LUDVIC PRESTO v. MARUBENI AMERICA CORPORATION, et al.

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