“The Death of Privilege?”

One would be hard-pressed to find an employee with an Internet connection at work who does not conduct personal business from work. And, one can certainly envision that the more pressing the personal business, the more likely that business will be conducted at work. And nothing is more pressing and personal than a litigation in which one is a party. Add to the mix that many companies have “Electronic Communications Policies” or “Information Technology Policies,” which provide that all communications systems, including telephone, e-mail, and internet, are the property of the employer and that the employee shall “have no expectation of privacy” with respect to the employer-owned systems, and you have the perfect storm that could spell the end of privilege in those cases in which an employee is engaged in any litigation other than one in which he shares the privilege with the employer (in which case, the communication could be a “joint” communication subject to a joint defense). In Long v. Marubeni America Corp., No. 05 Civ. 639 (GEL) (KNF), 2006 WL 2998671 (SDNY Oct. 19, 2006), Magistrate Judge Fox concluded that where employees used their work computers to send e-mails to their attorneys seeking legal advice, those e-mails were not protected by the attorney-client privilege because their company’s Electronic Communications Policy prohibited personal use of the computers and Internet, and provided that the employees had “no right of personal privacy in any matter stored in, created, or sent over the e-mail, voice mail, word processing and/or Internet systems provided.” Magistrate Judge Fox reasoned that the attorney-client communications were therefore not “confidential,” and that “[w]hen the confidentiality element is not shown to exist, the assertion of the attorney-client privilege to safeguard a communication from disclosure, is improper.” (Long v. Marubeni America Corp. at *3). Moreover, although certain communications were found to fall within the definition of work-product, Magistrate Judge Fox found that plaintiffs “waived” the privilege by voluntarily disclosing the work-product to those who were authorized to monitor the communications systems. Regardless of whether one agrees with Magistrate Judge Fox’s reasoning, it is worth considering the profound and unintended consequences that may flow from the decision.

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