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September 08, 2011

Northwestern Journal Addresses Privacy

A new article in the Northwestern Journal of Technology and Intellectual Property examines an important e-discovery issue for workers. 

The article, by professor Louise Hill, is titled "Gone but Not Forgotten: When Privacy, Policy and Privilege Collide." You can read it here.

Hill examines whether employees in a workplace can assert confidentiality over personal e-mails sent and received from workplace computers and e-mail accounts. In particular, she examines whether communications between employees and their personal attorneys are protected by the attorney-client privilege. 

The article notes that most businesses have established policies that relate to internet use and electronic communications, and that most workplaces allow some limited personal use of email and the Internet.  But policies and practices are not consistent. For this reason, the law in this area remains unsettled.

Says Hill: “jurisdictions are divided about whether employees give up the protection of attorney-client privilege when they use a company-issued computer to send or receive e-mails. Distinguishing factors, such as the type of e-mail system used, the company policy that is in place, and notice and enforcement of the policy, are among the things considered when the courts evaluate the issue.”

Complicating the issue is the fact that companies maintain and can access metadata, or data or content which is not typically visible in the output display. Thus, an electronic document, sent to a client, which may have confidential information available to a nonprivileged viewer. This raises an additional question about whether access of e-mail through the internet — through gmail, for example — destroys any privileged nature of the communication. 

Hill concludes that “when an employee uses a monitored company e-mail account on an employer-issued computer having knowledge of this type of company policy, any expectation of privacy should be diminished. Arguably, there is neither a subjective nor an objective privacy expectation with these transmissions. Rather, either the transmissions are not confidential, or, if they are considered confidential, use of this mechanism likely constitutes a voluntary waiver of any privilege that would otherwise protect the communication.”

The article contains a warning to attorneys to use care when transmitting confidential information to workplace computers. Attorneys should be especially careful in situations where clients may mistakenly believe that emails are confidential or the company does not make a practice of reviewing employee e-mails.



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