In a recent article in Law Technology News written by Anthony E. Davis titled “More Privilege Issues With Employee Email”, an interesting issue was posed: Should an employee expect that emails between themselves and their attorney be privileged when using the company’s email system?

Mr. Davis pointed to a case, Leor Exploration & Production LLC, et al., v. Aguiar, 2009 WL 3097207 (S.D. Fla.)(doc), where the court considered this question. The court cited another case, In Re Asia Global Crossing, Ltd., 322 B.R. 247, 257 (SDNY 2005), where four factors were listed:

1. does the corporation 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 e-mails, and
4. did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?”

In this case, if the answer was yes, then the employee should have had no reasonable expectation of privacy. This highlights the need to a corporate email use policy with documented processes. If through widely disseminated policies, the company did notify the employee of potential monitoring of email and stated that the corporate email system should not be used for personal use, then attorney client privilege is hard to prove.

Companies in the U.S. need to prepare themselves for the eDiscovery process by proactively collecting ESI including employee email so that they can quickly and effectively place legal holds and query that ESI archive for eDiscovery responce.

What should companies do to better protect themselves? Obviously they should develop email use policies that plainly state the above practices and train their employees on the email use policy.