Your Client’s Email Account and the Attorney Client Privilege

Friday, 24 June 2016 17:44 Written by  Thomas P. Donnelly

Reprinted with permission from the June 24, 2016 issue of The Legal Intelligencer. (c) 2016 ALM Media Properties. Further duplication without permission is prohibited.

The digital age and pervasive use of email communication gives rise to an entirely new and complex set of issues pertaining to the application of the attorney client privilege and the potential claim for waiver of that privilege.  Many commentators have addressed the use of commercial email servers and the implications of the terms and conditions applicable to such email accounts citing the potential that emails transmitted through such accounts may not be secure or protected.  The commercial provider’s right to use, retain or review the information communicated may impact on the privilege.   Even more complex are the issues that arise when email communications pass between a lawyer and a client utilizing an email account provided to the employee by the employee’s employer, or using an employer provided computer. While the law on an employer’s right to review information passing through its computer systems is continuing to develop, the application of that law to potentially attorney client privileged communications is in its infancy.   Research regarding the application of attorney client privilege to email communications exchanged through an employer’s email server reveals no case directly on point where the advice of counsel is sought regarding matters involving the employer.   

Litigants seeking discovery of attorney client communications through an employer sponsored email account cite the principles developed in cases of inadvertent disclosure and the requirements for invoking the attorney client privilege.  Pennsylvania law permits the invocation of the privilege if the communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter.   Nationwide Mutual Ins. Co. v. Fleming, 924 A.2d 1259 (Pa.Super. 2007).  In Carbis Walker, LLPv. Hill Barth and King, LLP, 930 A.2d 573 (Pa.Super.2007), the Superior Court adopted the five factor test to determine whether inadvertent disclosure amounted to a waiver of the attorney client privilege; (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures;(3) the extent of the disclosure;(4) the delay and measures taken to rectify the disclosure; and (5) whether the overriding interests of justice would or would not be served by relieving the party of its errors.

Certainly in discovery production situations, the principles of inadvertent disclosure apply.  The application of such principles when an employer obtains email communications through an examination of its own computer system without the involvement of the party asserting the privilege is more complex.  In such cases, there has arguably been no “inadvertent” production as there has been no “production” at all.  While Rule of Professional Conduct 4.4 mandates that counsel in receipt of what appears to be an inadvertently produced document notify the producing party of such production, the obligations of counsel in a non-discovery situation are less clear.  

One of the first reported cases on the issue of the confidentiality of emails and documents exchanged through an employer sponsored email is In re Asia Global Crossing, Ltd. 322 B.R. 247 (Bankr. S.D.N.Y. 2005).  In re Asia Global, Ltd, the Court developed a four part test to analyze an employee’s expectation of privacy with regard to email communications: (1) Does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee’s computer or emails, (3) do third parties have the right of access to the computer or emails and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies. 

While no state court in the Commonwealth of Pennsylvania has considered In re Asia Global,  the United States District Courts have applied the four part analysis adopted by the Asia Global Court.   In Dombrowski v. Governer Mifflin School Dist., 2012 WL 2501017 (E.D. Pa. 2012) the Court considered the reasonable expectation of privacy factors in dismissing a cause of action for invasion of privacy.  The Court concluded that the employer’s policies governing the use of computers and a specific notice that an employee had no right to privacy in the use of such computers was determinative of the employee’s claim of privacy.  The actual content of the communications was not addressed by the Court, however, it should be noted the Court indicated that attorney client privileged content had been redacted.   

A different result was reached in U.S. v. Nagle, 2010 WL 3896200 (M.D. Pa. 2010).  In Nagle, District Judge Rambo applied the In re Asia Global factors to exclude evidence of attorney client privileged communications in a criminal prosecution.  The specific communication at issue included a chronology prepared by a would-be defendant in a criminal case in anticipation of criminal charges.  The document was prepared, saved and maintained on his work computer.  The document was not password protected nor did the client label the document in any way so as to indicate the application of privilege.  Others at the work place had access to the computer.   Recognizing the importance of the attorney client privilege as the oldest and most established common law privilege, and applying the four part Asia Global test, the Court concluded that the chronology was privileged notwithstanding its preparation and storage on a work place computer and protected the document from production.  
 
The Courts in New Jersey have specifically preserved the attorney client privilege notwithstanding transmission through a company computer.  In Stengart v. Loving Care Agency, Inc., 973 A.2d 390 (App. Div. 2009) aff’d 990 A.2d 650 (N.J. 2010) the court held that an employee had not waived the attorney client privilege by communicating with counsel via a company owned computer.  The New Jersey Supreme Court concluded that the privilege applied to such email communications based on the employee’s reasonable expectation of privacy and the Asia Global factors.  The Court further analyzed the claim of waiver of the privilege by the use of the company computer, however, the Stengart Court disagreed, finding that the employee had taken reasonable steps to maintain confidentiality.  The Court noted that the employee had not utilized the company email address in communicating with her attorney.   
 
Consistent with the principles supporting effective communication with counsel, email communications between an attorney and the client must remain privileged.  Practitioners are encouraged to consider the means by which we communicate with our clients at the outset of representation so as to avoid the distraction and risk of production in litigation. 

Tom Donnelly is a Partner with Antheil, Maslow & MacMinn, LLP based in Doylestown, Pennsylvania. His practice focuses primarily on commercial litigation and transactions, employment disputes and personal injury.  To learn more about the firm or Tom Donnelly, visit www.ammlaw.com.

Last modified on Friday, 24 June 2016 17:47
Thomas P. Donnelly

Thomas P. Donnelly

Tom’s practice focuses on commercial litigation and transactions. In litigation, Tom represents both Plaintiffs and Defendants. Throughout his career, he has undertaken the representation of both individual and corporate clients in subject matters concerning fraud, contracts, employment agreements, breach of fiduciary duty, securities violations, real estate and insurer bad faith. Tom’s clients include individuals and businesses local to the Philadelphia area, as well as national corporations.

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