Are e-mails protected by attorney-client privilege when an employee communicates with their personal lawyer via their work-provided email address? Until recently, the answer seemed to be no, they are not protected by privilege. Attached to this rule however was the caveat that the company had to circulate a personnel policy explicitly warning that such communications could be monitored and did not deserve confidentiality or privilege protection.
However, in a decision passed down earlier this year, one Maryland court reversed course, holding that these emails are privileged. In the Maryland case, the court noted, in pertinent part that (i) the employer’s personnel policy did not “affirmatively ban personal use by its employees” but instead only warned them to keep such use “to a minimum;” (ii) the employer only reserved the right to monitor its employees e-mail, but did not actively or routinely do so; and (iii) the employer did not take affirmative steps to inform its employees of these policies or to have its employee’s acknowledge the policy.
It seems the Maryland case could potentially start a new trend of placing a heavier burden on the employer in similar matters. If you have any questions regarding this matter, or an employee personnel policy, please contact the attorneys at Rock Fusco & Connelly.