Banners, policy handbooks and other places where businesses set forth the terms by which employees can use business computers and networks are as much a fact of business life today as the computers we use. Typically, business policies preclude employees from any right of privacy to any data sent from or to or stored on any part of the network.
Given the expansiveness of these policies, it would seem a straightforward conclusion that any user of a network governed by them who has placed onto the network materials that otherwise might be protected by attorney-client privilege has waived that privilege. Indeed, in Kaufman v. SunGard Investment Systems Inc., 2006 WL 1307882 (D.N.J. May 10, 2006), the District Court for New Jersey held just that. However, just five days later, in Curto v. Medical World Communications Inc., 2006 WL 1318387 (E.D.N.Y. May 15, 2006), the District Court for the Eastern District of New York held the opposite. In both cases, the District Court affirmed the ruling of the Magistrate Judge who had first considered the issue. There are factual differences between the cases, but they are insignificant. What is significant is the divergence of opinion as to the scope and effect of business computer use policies.
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