Wired reported a disturbing court decision last week. When a worker bee uses work e-mail to contact her attorney, can the employer use that e-mail as evidence? In one corner, we have attorney-client privilege. In the other, we have an employer’s “we own your e-mail” computer policy.
According to a California state appeals court this week, attorney-client privilege loses. That’s right. Gina Holmes filed suit against her employer for pregnancy discrimination. Her employer presented e-mail correspondence indicating that Holmes had only been annoyed, not devastated, by the alleged discrimination. Even though the e-mail chain was between Holmes and her lawyer — normally a sacred trust — the court ruled unanimously that Holmes had been warned in writing that work e-mail was monitored, and therefore her communications did not merit protection. The case turned on the fact that the company had a written policy stating that e-mail was monitored and subject to audit at any time. The court ruled that in those circumstances, discussing sensitive legal matters on work servers was akin to talking at the top of one’s voice in an office conference room with the door open.
In New Jersey, complicating the puzzle, the state’s highest court ruled that e-mail sent through a personal account was private. Why? Because the communications policy was not clear about whether or not personal activity (e.g. Gmail sent on a work computer during work hours) was monitored. If the communications policy had been clear, the result might have been different. Employers drafting or amending their computer policies from now on will probably take this into consideration.
To summarize: Fine print wins again. Do you know what your fine print says?
Also know this about your work e-mail: Regardless of whether it’s admissible in court, people are going to read it.
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