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Think Carefully About Where You Send Client Emails To Avoid Waiving A Privilege

January 21, 2019
Attorney at Law Magazine - Minnesota Edition
Author: Cory D. Olson

With the ubiquity of smartphones, tablets, and laptops, the line between work and home life can blur. According to one survey, 70 percent of Americans check their work email after business hours, and companies frequently provide employees with laptops or other portable devices to help them work remotely.

Not surprisingly, employees often use the devices or their work email addresses for personal reasons. For some, that includes emailing attorneys – often about potential claims by or against the employer. It may surprise those employees, and possibly even their attorneys, that their client emails may not be protected by the attorney-client privilege.

The issue turns on whether the emails can be considered private. To be privileged, a communication must be made in confidence. If a third party is present or permitted to listen in, then no privilege attaches. But what about emails sent over an employer’s server or from an employer-owned device? If the employer can demand the device be returned or can obtain the emails from its own server, can the communications still be considered privileged?

"To avoid inadvertent disclosure, attorneys often recommend clients use personal email addresses, such as those offered by Gmail or Hotmail. While courts generally afford web-based messages greater protection, if the services are accessed with company devices, it can result in a waiver of the privilege.”

It depends. Courts consider the issue on a case-by-case basis, looking at several factors to evaluate whether the employee had a reasonable expectation that the communications would remain private. The most commonly used factors were identified in In re Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005), which recommended courts consider the following:

1. Does the employer maintain a policy banning personal or other objectionable use?
2. Does the company monitor the use of the employee’s computer or email?
3. Do third parties have a right of access to the computer or email?
4. Did the employer notify the employee, or was the employee aware, of the use and monitoring policies?

Cases throughout the country have cited the Asia Global factors in determining whether the employee’s emails are protected by the privilege. Although Minnesota has not formally adopted the Asia Global factors, the Court of Appeals has called them “a useful framework for considering reasonable expectations of privacy.” Gates v. Wheeler, 2010 WL 4721331 (Minn. Ct. App. Nov. 23, 2010). Read more.