Sunday, May 21, 2006, 5/21/2006 10:13:00 AM

Company Computers, "No Expectation of Privacy" Policies, and Good Old "Deleted" E-Mails

By Todd
Imagine that an employer has a policy that says something to the effect that "computers and computer accounts provided to our employees are to assist them in the performance of their duties . . . and employees of the company have no reasonable expectation of privacy in their e-mails or transmissions to others outside the company . . . and we reserve the right to monitor communications made from our computers and computer accounts . . . ." This shouldn't be hard to do as most employers who have spoken with an attorney have such a policy in place.

Imagine also that the employee grows disgruntled with their employer at some point. Again, not hard to do as most employers know that most employees do, in fact, grow disgruntled at some point.

Imagine, however, that the disgruntled employee is so disgruntled that she hires an attorney and then uses the company computer to communicate with that attorney about things like what was the best way to get at the company legally. Imagine, too, that the company's policies required the return of all company property at the termination of the employee's employment and then, like many smart employers who are being sued do, the company did a computer forensic search of the company's computer system and its expert found a huge number of "deleted" e-mails that constituted attorney-client communications between the now terminated employee and her attorney.

The issue, of course, is: DID THE EMPLOYEE WAIVE THE ATTORNEY/CLIENT PRIVILEGE BY USING COMPANY COMPUTERS TO ENGAGE IN THOSE PURPORTED CONFIDENTIAL COMMUNICATIONS WITH HER ATTORNEY?

The answer from a federal court in New York may surprise you - that court said no, there was not a waiver of the privilege by the former employee. The court's reasoning is interesting: (a) the court acknowledged that inadvertent disclosures of attorney/client materials usally constitutes a waiver of that privilege; (b) that is not the rule, though, unless the party's conduct was so careless as to suggest it was not concerned with the privilege; and (c) although the ex-employee's use of the company computer system appeared careless on its face, the company's failure to enforce its computer usage policy lulled employees into believing the policy would not be enforced and thus suggested to the ex-employee she was not being careless.

This is a particularly troubling case that has significant unrelated ramifications that we'll mention in short. First, we believe that a company's computer system is its property and that the rule of law demands that the privilege as to any attorney/client communications with an attorney for reasons other than the company's business would be waived as a per se rule as long as there is evidence that the employee understood the company's computer usage policy (i.e., the signed employee acknowledgement). Second, we empathize with the company's attorneys in this case and agree that the company's actual track record of enforcing the policy (i.e., punishing those who violate it) is irrelevant to the inquiry of whether the employee was being careless with her attorney/client communications. Last, we think the ramifications of such a holding is that employers who want to put teeth in their computer usage policies MUST police their policies more stringently, at least in Long Island, New York, or else they may find themselves unable to enforce the same on a go-forward basis. We're going to keep our eye on this one.

Editors' note to departing employees: no e-mail is ever permanently deleted.

The case is cited as Curto v. Medical World Communications, Inc., 2006 WL 1318387 (E.D.N.Y. May 15, 2006).

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