Employers occasionally find themselves in litigation with current or former employees. Sometimes an employer-defendant will uncover communications between the plaintiff-employee and her personal attorney or spouse on an employer-owned email or computer system.
These communications might ordinarily be privileged, but inadvertent disclosure to a third party–in this case, the employer–could waive the privilege if the employee failed to take reasonable precautions to maintain confidentiality. Many employers maintain policies informing employees that communications on work systems are not private and may be monitored. Employers seeking to use otherwise-privileged communications in litigation have argued that any asserted employee privilege is misplaced or waived, because the employee had no reasonable expectation of privacy on company systems.
But courts have not always agreed. The existence of a computer use policy only begins the analysis. Employers might therefore seek a court’s permission before reviewing or using potentially-privileged communications. The chances of a favorable ruling improve if some or all of the following occur:
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