Are Your Communications Privileged?

The digital age opens new questions about attorney-client privilege
By Matthew H. McKinney | January 30, 2012

Communications between a client and their attorney(s) are generally protected by the well-recognized attorney-client privilege. Importantly, however, the attorney-client privilege, along with other recognized privileges, are only as strong as the confidentialities (or expectations of privacy) associated with the communications. For instance, courts generally recognize that if a third party is present while an exchange of privileged, confidential information is made with an attorney and the third party is not an agent of the attorney, any privilege that may have existed is waived. In other words, a court will likely find that a privilege does not exist if a third party is either present or has access to the privileged information.

While advances in technology have streamlined the ability for clients and their attorneys to communicate worldwide 24/7 with the simple click of a button, the same technology has opened the door to new challenges regarding the scope and applicability of the attorney-client privilege. For example, when an employee uses work email, as opposed to a personal, password protected email, to communicate otherwise privileged information with their personal attorney, is that email communication privileged? What about if the employee’s work computer and email system are monitored by the employer, is the communication still privileged? Further complicating matters, what if the employer has a policy that bans personal use of the company computer and information technology (IT) systems? What if IT staff and others are granted access to the employee’s email account as a matter of company policy? Under which of these scenarios, if any, will the employee’s email communication remain privileged? Conversely, under which scenario may the employee have opened the door for their adversary—in a litigation setting—to obtain the employer’s records as well as copies of the employee’s emails despite the fact they may have been sent to the employee’s personal attorney?

These same questions and issues can also apply to disputing business owners. For example, suppose that A and B are the sole owners in ABC business entity and that A is suing B for breach of fiduciary duty. Further suppose that before and during the litigation A and B use their business’s email account to communicate with their respective personal attorneys regarding the dispute. Suppose also that A is responsible for keeping up ABC’s IT systems and has complete access to the business’ email, which B knew or should have known. Are B’s emails to his attorney privileged or has the privilege been waived? What if A has reviewed B’s emails while maintaining ABC’s IT system, are B’s emails still privileged? What about A’s emails?

These and other unique questions are being litigated more and more in courts across the U.S. And not surprisingly, a bright-line rule has yet to surface. Even so, several courts have applied what have become known as the Asia Global factors to determine whether a privilege exists in some of the unique scenarios described above. Generally, the four Asia Global factors are: Does the employer or business maintain a policy banning personal use of emails? Does the employer or business monitor the use of its computer or email? Does the employer or business have access to the computer or emails? Did the employer or business notify the employee about these policies? In addition to these four factors, some courts have applied a fifth factor, which is: How did the employer or business interpret its computer usage policy?

According to certain courts and the opinion cited above, these factors are used to determine whether an employee or person has a reasonable, subjective expectation of privacy in their communication that society is willing to accept as objectively reasonable. If, upon applying these factors, they have a subjective expectation of privacy that is objectively reasonable, then certain courts have found email communications should remain privileged. Conversely, if the expectation of privacy is not reasonable, or it is something that society does not accept as objectively reasonable, then the email communications will not be protected by the privilege. 

While this area of the law is continually changing and remains unsettled, a licensed attorney in your jurisdiction versed in this area of the law should be able to provide guidance on this and other similarly related privilege issues.

Author: Matthew H. McKinney
Attorney, BrownWinick Law Firm
 (515) 242-2468
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