Internet Law Update

Tuesday, July 25, 2006

Employee Does Not Waive Attorney Client Privilege Simply By Communicating Over Company Email System

This week's Internet Law Update features an extensive analysis of In re: Asia Global Crossing, Ltd., et al., 322 B.R. 247 (Bankr. S.D.N.Y., March 21, 2005).

A Bankruptcy Court Judge holds that the use of a company’s e-mail system by an employee to send personal e-mails to the employee’s personal counsel does not, without more, waive any attorney client privilege in such communications. Whether a waiver had occurred must instead be resolved by examining the employee’s subjective and objective expectations that the communications would be confidential. In analyzing this question, Courts should look for guidance to cases that address an employee’s privacy rights in e-mail sent over company e-mail systems, which hinge on the resolution of a similar question -- the reasonableness of an employee’s expectation of privacy in such e-mails. Issues of fact as to the existence and application of company computer usage policies, and whether employees were warned that the Company could inspect e-mails sent over the company’s system, prevented the Court from resolving the issue at this time.

The Court further held that any privileges attendant to certain additional e-mails between company employees and their personal counsel had been waived by their voluntary transmission of such e-mails both to counsel representing the company, and to a consultant rendering services to the company.

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