You unfortunately find yourself involved as a party to a lawsuit. At your initial consultation with your attorney, he or she explains how important it is for you to make full and frank disclosures, but not to worry — all of the communications between the two of you are protected from disclosure due to the attorney-client privilege. Of course, being 2016, most of your communication is by email. You and your attorney need to be very careful that communications about your lawsuit may not be privileged if done on your employer’s computer system. A recent federal court case from the Middle District of Florida, Bingham v. Baycare Health System, 2016 WL 3917513 (M.D. Fla. July 20, 2016), highlights the problems that may arise if individuals and their attorneys are not careful in this regard.
In Bingham, the defendant served a subpoena upon the plaintiff’s employer, seeking documents related to the allegations in the lawsuit. The employer was a third party, and had no connection to the case other than being the employer of the plaintiff. The attorney had sent emails to the plaintiff that contained links to documents kept at a cloud storage account. The plaintiff had forwarded certain of these emails to his work so that he could access the links from his work account. The defendant argued that emails from the plaintiff’s work email account were not confidential and therefore not covered by the attorney-client privilege.
The Bingham court recognized that “[t]o determine if a particular communication is confidential and protected by the attorney-client privilege, the privilege holder must prove that the communication was intended to remain confidential and, under the circumstances, was reasonably expected and understood to be confidential.” The problem for employees is that many employers maintain a policy whereby they limit and monitor the employee’s use of the company computer system. Therefore, Bingham explained that “[c]ourts addressing this issue have focused primarily on whether the employer maintains a policy regarding the use of its computer or email systems. Specifically, courts consider the specificity of the policy and the extent to which the policy diminishes an employee’s reasonable expectations of privacy in communications transmitted over the employer’s systems.”
Courts have adopted a four factor test to determine whether a reasonable expectation of privacy exists in the context of e-mail transmitted over and maintained on a company server:
- whether the corporation maintains a policy banning personal or other objectionable use;
- whether the company monitors the use of the employee’s computer or email;
- whether third parties have a right of access to the computer or e-mails; and
- whether the corporation notifies the employee, or whether the employee was aware of the use and monitoring policies.
The Bingham court reviewed numerous cases and concluded that the majority of courts have found that an employee has no reasonable expectation of privacy in workplace e-mails when the employer’s policy limits personal use or otherwise restricts employees’ use of its system and notifies employees of its policy. After a close examination of these factors, the Bingham court concluded that the plaintiff did not have a reasonable expectation of privacy for emails on the company’s computers, and therefore the communications were not covered by the attorney-client privilege.
Given the existence of these issues, attorneys should be careful to communicate with their individual clients on the client’s personal email account, not his or her work email. Likewise, the client should also be careful not only to communicate using the personal email account, but not to forward those emails to work in order to, for instance, print out a large document. If your workplace has a typical policy that limits personal use and allows for monitoring of the system, you likely will be putting your attorney-client privilege in jeopardy.