A recent decision by the Delaware Chancery Court provides a cautionary tale to lawyers and clients alike about privilege over email, according to Todd Presnell on his blog. The court found attorney-client privilege did not apply to a corporate executive’s emails with a personal lawyer over company email, because of the employee monitoring policy. “The court found this policy nullified the executive’s reasonable expectation of privacy,” says Presnell.
According to the decision, employees generally can expect that communications via the Internet through company servers are private. But in this specific case, there was a policy that notified employees the company had unrestricted access to communications made on their computers and servers, which was enough to sever privilege. Additionally, the lawsuit in which the executive was seeking legal advice, directly involved the company. “[A] different result may occur when it is a third party seeking access to the employee’s workplace communications to a personal lawyer rather than the company,” says Presnell.
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