Most of us have known for years that anything sent over company email may be monitored and probably archived. After all, the employer needs to insure that intellectual property
and other privileged information is not going out the electronic door. However, the courts are still deciding how far the right of privacy of an individual extends when using company supplied equipment.
In Boise, Idaho, U.S. District Judge Shira A. Schedindlin rejected a claim of attorney client privilege because the person send email to their attorney using his work email address. The court found that privilege did not apply because a company policy states that email will be monitored. According to the ruling, “It is unreasonable for any employee in this technological age–and particularly an employee receiving the notice Kirkpatrick received–to believe that her e-mails, sent directly from her company’s e-mail address over its computers, would not be stored by the company and made available for retrieval.”
However, on March 29th, the New Jersey Supreme Court declared in a similar case to uphold attorney client privilege. The difference in this case is that the employee used a company laptop to access her own password protected webmail. According to the New Jersey court, ” A Massachusetts decision, National Economic Research Associates v. Evans, is most analogous to the facts here. In Evans, an employee used a company laptop to communicate with his attorney through his personal, password-protected Yahoo account. The emails were automatically stored in a temporary Internet file on the laptop’s hard drive and were later retrieved by a forensic expert. A company manual permitted personal use of e-mail, to “be kept to a minimum,” but warned that computer resources were the “property of the Company” and that e-mails were “not confidential” and could be read “during routine checks.” The court denied the company’s request to use the e-mails. The court reasoned that, while the manual warned that e-mails sent on the network could be read, it did not expressly state that the company would monitor the content of e-mail communications made from an employee’s personal e-mail account when they were viewed on a company-issued computer. Also, the company did not warn employees that the content of such e-mails is stored on the hard drive and capable of being read by the company. The court found that the employee had a reasonable expectation of privacy in e-mails with his attorney. (pp. 17-19)”
For now, the best policy is to email private communication from home on your own computer. If you must use your company laptop to email, use your own web based email such as Yahoo or Gmail. Check your companies policy on use of company equipment for personal use.
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