Litigation: Seek court’s guidance on potentially privileged emails

ABA opinion provides guidance to corporate counsel regarding employee’s privileged emails.

An employee hires an attorney and files a lawsuit against her employer. The employee communicates with her attorney using her workplace computer and smartphone. The employee is aware of the company’s written policy that reserves its right of access to email correspondence via the company’s email account and computers, and so she puts the legend “Attorney-Client Confidential Communication” on all of her communications with her attorney.

The company hires outside counsel to defend the lawsuit. It also engages a computer forensic expert to retrieve and copy the contents of the employee’s workplace computer and smartphone. The company then provides the contents to its counsel, who searches for information to help defend the company and discovers the employee’s potentially privileged emails with her attorney.

The opinion notes that although the Model Rules do not require disclosure of the potentially privileged email communications, courts may nevertheless impose a disclosure obligation, and the failure to meet that obligation could result in disciplinary action or a litigation sanction.

In one case highlighted by the ABA, the Supreme Court of New Jersey found that an employer’s lawyer violated New Jersey’s version of Rule 4.4(b) by failing to notify the employee’s counsel that the employer had downloaded and intended to use copies of pre-suit email messages exchanged between the employee and her lawyers. See Stengart v. Loving Care Agency, Inc., 990 A.2d 650, 665 (N.J. 2010). The Stengart court found that the employee “had an objectively reasonable expectation of privacy” in the emails based on the fact that the employee “could reasonably expect that  e-mail communications with her lawyer through her personal account would remain private, and that sending and receiving them via a company laptop did not eliminate the attorney-client privilege that protected them.” Id. at 655.


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Alex Romain

Alex G. Romain is a partner at Williams & Connolly LLP, where he concentrates his practice on securities litigation and professional liability defense. He can...

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