Employer Monitoring of Employee Email: Attorney-Client Privilege Should Attach to Communications That the Client Believed Were Confidential

April 30, 2013

Emails feel like private, confidential communications. But in the workplace, employers often retain the right to monitor every communication sent or received by an employee on an employer-owned device or network. This Note addresses the issue of whether attorney-client privilege should attach to communications made between an employee and her private attorney over a system monitored by her employer. When addressing this issue, most district and state courts apply a test that seeks to determine the reasonableness of the employee’s expectation of confidentiality in the attorney-client communication. However, courts differ in how they apply the expectation of reasonableness test, with nearly every court finding a different fact dispositive. This Note argues that attorneys, employers, and courts should instead use a three-pronged approach: first, attorneys should seek to prevent monitored communications with their clients from occurring in the first place; second, employers should take precautions to prevent their employees’ attorney- client communications from becoming nonconfidential; and third, courts should allow attorney-client privilege to attach to communications that the client believed were confidential. This three-pronged approach is consistent with the doctrine&rsquols other exceptions to a strict confidentiality requirement and realigns attorney-client privilege with its public policy goals.

May 2013

No. 6