Another Client Loses Privilege Because Employer Policies Allowed Monitoring

I’ve written about this a few times but, sadly, no one listens to me!

Here’s the fact pattern:  your client is emailing you from their work email account, or your client is using a computer that its employer owns.  (Your client is not the employer, but an individual.)  Whether your client is in litigation with its employer — or someone else! — if the employer has policies in place and in use that allow it to monitor employee email or the computer itself, there likely is no reasonable expectation of privacy in those emails or in the files on the computer and, if so, no privilege.

Another case, this one from New York and involving an employer’s laptop and a suit with the company, applied the leading test to determine whether the employee knew that monitoring was allowed, and in fact occurred, and found the employee– former general counsel —  could not withhold more than 106 files that he had created after he had been fired by the company on its laptop.  Miller v. Zara USA, Inc., (N.Y. App. Div. June 6, 2017).  The appellate court remanded the case to the trial court to determine if any of the documents were, although not privileged, nonetheless protected by work product.

Realize this: even if the dispute is between your client and some third party, that third party can also rely on the lack of a reasonable expectation of confidentiality and show there is no privilege.  And, finally, if you draft these policies, your client’s employees may not realize that this isn’t just “gee my employer can review my emails if I get in a fight with it,” it’s “if you get in a fight with anyone, you’re not going to have privilege.”  I bet your clients would like it if you made that really clear, since that’s not intuitive.

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

One thought on “Another Client Loses Privilege Because Employer Policies Allowed Monitoring

  1. 1

    (Your client is not the employer, but an individual.)

    In the patent sphere, this is (or at least should be) an immediate red flag.

    Overall, a very good “heads up.”

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