DOES AN EMPLOYEE WAIVE A PRIVILEGE TO CORRESPOND WITH THEIR LAWYER IF THEY USE THE COMPANY E-MAIL?

In a recent case the employer hired a woman named Holms but a month later she announced she was pregnant. It was not long before the President of the company made it plain that he was very unhappy about having to find someone to fill in when Ms. Holms went out on leave to have her baby. She used the company computer to e-mail her attorney to ask about whether her treatment had created a hostile work environment, what her rights were, and what her options were.

The trial judge sided with the employer because of a policy that prohibited the use of company e-mail for personal matters and giving the employer the right to inspect “all files and messages at any time.” A court in California upheld a verdict for the company concluding that the female employee’s e-mails were not protected by attorney/client privilege because she had used a system that was open to inspection and monitoring by third parties as opposed to having sent an e-mail from her home to her lawyer.

On the other hand, the New Jersey Supreme Court has held that an employer cannot read an employee’s e-mails to her lawyer. Thus, this area of the law will depend on the judge and location of the court deciding the question. So, employees need to think twice before they use an employer’s computer to contact their lawyer—it may or may not be discoverable.

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