On July 1, 2016, Tennessee’s Revised Uniform Fiduciary Access to Digital Assets Act went into effect.  The Act grants fiduciaries authority to access a decedent’s digital assets.  As a result, executors, trustees, powers of attorney, conservators, guardians, and other fiduciaries may access a decedent’s online communications and “digital assets.”

“Digital assets” include computer files, email, social media accounts, electronic healthcare records, and accounts with financial institutions and online vendors, among other electronic records.

But, don’t worry.  If the decedent was your employee, your confidential employment information is safe.  The Act specifically excludes from the fiduciary’s access, “digital assets of an employer used by an employee in the ordinary course of the employer’s business.”

This means that while a fiduciary can access the decedent’s personal emails and online activity, the fiduciary cannot access your company email or digital files used by the decedent.  Therefore, any confidential employment information, including trade secrets conveyed by company email, cannot be viewed by the fiduciary.

An issue may arise if your employee uses personal email for company business, or creates or stores company files on a personal computer.  To deal with this potential, it may be time to update your company policies to ensure that all company communications and work product are done from company owned computers and company email accounts.  Your policies should also make it clear that all company communications and work product belong solely and exclusively to the company.  This will strengthen your argument that the fiduciary should not be able to access your confidential information even if it is located on the decedent-employee’s personal computer.

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