Employee’s use of Employer’s Email Server Waives Privilege

Many employers enable workers to use e-mail, however have insurance policies that state that the employer is free to watch e-mail.  Many circumstances have held that, relying on the info, the worker can not assert privilege beneath these circumstances:  each in claims between worker and the employer and between the worker and a 3rd celebration.

This doctrine bit one other worker just lately, in a New York Appellate Division case, Peerenboom v. Marvel Entertainment, LLC, (N.Y. App. Div. March 16, 2017), obtainable here.  The courtroom discovered spousal privilege and lawyer shopper privilege waived as a result of the worker (the chair of the corporate) lacked an affordable expectation of privateness based mostly upon utility of the 4 components from the main case.

Any time a lawyer is conscious that his shopper is sending emails from an employer, he ought to take into account whether or not privilege shall be deemed waived, and, conversely, legal professionals ought to look to see if the opponents are doing this, and so waiving privilege.

This shouldn’t be a brand new physique of regulation, nevertheless it continues to chunk folks.

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.
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