State and federal courts generally hold that an employer can monitor employee Internet usage and employee personal e-mails sent using company Internet systems. However, the question federal and state courts are only now starting to consider is whether a statutory privilege, such as the attorney-client privilege, trumps the employer’s right to monitor electronic communications. This is a significant and complicated issue for employers and their counsel. If the employee has an expectation of privacy, reviewing the employee’s attorney-client communications could open the employer up to invasion of privacy lawsuits. In addition, if the communications concern an anticipated lawsuit with the employer, review of such e-mails could potentially disqualify the employer’s counsel from handling the litigation.

Neither the Ninth Circuit U.S. Court of Appeals nor the California Court of Appeal has yet tackled this issue, but federal and state court trends from other jurisdictions provide some guidance. The first factor is the company’s Internet and e-mail usage policy. Courts generally hold that an employee has an expectation of privacy in attorney-client e-mails unless the company: (1) has a clear written policy banning personal use of the corporate e-mail system; (2) the employer regularly monitors its employees’ computer and e-mail usage; and (3) the employee has notice of such policies.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]