Experienced practitioners know that the purpose of the attorney-client privilege is to protect the confidentiality of client communications. Thus, as company policies that allow monitoring of emails or provide third party access may undermine any reasonable expectation of confidentiality, they may determine whether the privilege applies to personal communications sent on a company server. While many courts have rejected privilege claims for employee-personal counsel communications sent through the company’s email system on this basis, the law in this area continues to develop. Accordingly, to be prepared, counsel should familiarize themselves with the current law in their jurisdiction.
The evolving nature of this analysis was recently highlighted in Peerenboom v. Marvel Entertainment LLC,i where the Supreme Court of New York held that emails sent to personal counsel via the company’s computer system were not subject to the attorney-client privilege, but could be subject to the attorney work product privilege.
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