Business executives’ use of office e-mail to communicate in personal matters has become ubiquitous. When those e-mails involve otherwise privileged communications with personal counsel, the executives risk waiving the attorney-client privilege.
In the landmark case involving this issue, In re Asia Global Crossing, Ltd. (PDF), a Chapter 11 trustee sought the production of otherwise privileged e-mails between the five principal officers of the debtor corporation. The Asia Crossing court started from the proposition that an employee may have a reasonable expectation of privacy in a work e-mail account, but that expectation may be reduced by office policies and practices. Thus, the court concluded that the use of an office e-mail system to send privileged communications does not automatically destroy privilege.