Have you ever considered whether your company has a right to use an employee’s e-mail communications with his or her attorney conveyed through your company’s system? A company’s defense in an employment lawsuit can be impacted by this important question and courts are looking to the company’s employee handbook and policies for the answer. The scenario goes like this: employee begins to have alleged issues, employee uses the company system to communicate with a personal attorney about those alleged issues, employee leaves and pursues an action against the company, and company finds the employee’s communications with his or her personal attorney on the company system. Often, those communications provide a clearer version of the facts that will bolster the company’s defense. Sometimes, the communications can support an offensive action against the employee. Next step: Litigation over whether the employee’s e-mails can be used by the employer in a lawsuit or whether the now former employee can protect those communications by asserting attorney-client privilege.

Courts in a number of states have relied on the employer’s handbook and policies to determine whether the employer has a right to use the employee’s e-mail communications in litigation. The key issue in all cases has been whether the employee had any expectation of privacy when using the employer’s computer systems or whether that expectation was extinguished by the employer’s handbook or policies. If an expectation of privacy existed, the employee’s communications with his or her personal attorney were often-times found protected and the employer was not allowed to use them offensively or defensively in the employment lawsuit. Conversely, if the handbook or policies extinguished the employee’s privacy rights, courts usually permitted the employer to use the employee’s communications with his or her attorney against the employee in the lawsuit.