does your firm have electronic

Does Your Firm Have an Electronic Communications Policy?

As e-mail has become the primary method of communication in corporate

workplaces, employers have increasingly adopted electronic

communications policies (ECPs) in an effort to protect against the

perils of the e-mail medium, among them, the potential for diminished

employee productivity and the risk of e-mail content that may subject

the employer to legal exposure. A number of recent decisions

demonstrate that ECPs are crucial for another reason -- protecting the

employer's interests in litigation with a current or former employee.

In several noteworthy decisions, New Jersey and New York courts have

held that the discoverability of otherwise privileged e-mails between

an employee and his personal attorney, transmitted using the

employer's computer system, turns on the language of the employer's

ECP and whether the policy is enforced. These cases provide helpful

guidance for employers in determining how ECPs should be worded and

enforced to best protect the employer in future litigation.

The cases in this area all focus on whether the employee has a

reasonable expectation of privacy in his "personal" e-mail sent

through company systems. In the employment context, it is well

established that an employee's expectation of privacy in his office,

desk and files may "be reduced by virtue of actual office practices

and procedures, or by legitimate regulation." O'Connor v. Ortega, 480

U.S. 709, 717 (1987). Due to the variety of work environments, whether

the employee has a reasonable expectation of privacy must be decided

on a case-by-case basis.

Accordingly, courts that have grappled with this issue have focused on

whether there can be any such reasonable expectation. In re Asia

Global Crossing, Ltd., 322 B.R. 247 (S.D.N.Y. 2005), one of the

earliest decisions on this issue, adopted a four-factor test to

analyze when an employee may lose any expectation of privacy and waive

the attorney-client privilege by communicating with his personal

attorney using an employer e-mail system. The factors are: 1) whether

the employer has an ECP, banning personal or other objectionable

e-mail usage; 2) whether the employer monitors employees' computer or

e-mail use; 3) whether third parties have a right of access to

employees' computer or e-mails; and 4) the employee's awareness of the

ECP.

Subsequent decisions have shown that this fact-sensitive analysis has

the potential to lead to disparate determinations. In Curto v. Medical

World Communications, 2006 WL 1318387 (E.D.N.Y. May 15, 2006), the

court held that the plaintiff did not waive the attorney-client

privilege with respect to e-mails with her attorney that were

retrieved from company-owned computers she used during her employment

despite evidence that the employer had an ECP and that the plaintiff

had in fact received the policy. The ECP specifically provided that

employees had no expectation of privacy in material "create[d],

store[d], sen[t], or receive[d] on the computer system" and that the

employer could monitor its computer resources. Adopting the Asia

Global test, the Curto court emphasized that: 1) the plaintiff worked

primarily from home, using company computers that were not connected

to the employer's server; 2) the employer rarely, if ever, enforced

its ECP, and could not have monitored the plaintiff's e-mail without

going to her home, or having her bring the computers to the office; 3)

the plaintiff took precautions to protect her communications, sending

the e-mails through her personal AOL account and attempting to delete

the e-mails before returning her laptops.

Other courts have more broadly construed the protections ECPs can

afford aggrieved employers. In Kaufman v. SunGard Invest. Sys., 2006

WL 1307882 (D.N.J. May 10, 2006), the court affirmed an order holding

that the plaintiff had no reasonable expectation of privacy in e-mails

exchanged with her attorney using her former employer's computer

network. Following the plaintiff's termination, she returned two

laptops she had used for company business, having deleted e-mails with

her attorney from the computers. SunGard's computer expert restored

the deleted files and recovered the communications, and plaintiff then

claimed that the e-mails were privileged.

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