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Total Articles: 7

Employers Have An Obligation To Provide Meaningful Direction To Employees In Email Searches, But Employers Can’t Be Compelled To Recover Company Emails Stored On Personal Accounts Of Employees

A recent case from the Northern District of California raises the importance of actively engaging with employees to coordinate the search for documents and electronically-stored information to comply with the employer’s discovery obligations. At the same time, the Court ruled that an employer cannot be compelled to produce business-related emails from the personal email accounts of its employees.

Public and Private E-mails Don’t Mix

Hillary Clinton recently made headlines for using her personal email account for business purposes during her tenure as Secretary of State. This high profile example provides us with an opportunity to reflect upon what is commonplace for some. It can be tempting for employees to use personal email accounts to conduct corporate business, particularly when working remotely. However, the highly sensitive nature of Clinton’s job raised questions over the security of using a non-work email account to transmit information. Depending on the nature of your job or the emails that you send, there are risks when mixing personal and business e-mails.

Auto-Forwarding Employee E-mails Presents Risk Under Federal Wiretap Act.

Employers’ ability to monitor e-mails sent by employees at work is a hot topic in privacy law and is being addressed by a growing number of courts around the country as the law works to catch up with technology. In Chicago, the Seventh Circuit Court of Appeals gave reason to view this issue from a different perspective, finding that an IRS agent violated the Wiretap Act by secretly setting up his boss’s e-mail account to forward all received e-mail messages to his own account.

Are Employees' Personal Emails On Work Computers Private? "Sometimes" Rules N.J. Supreme Court.

Until last week, most employers believed that they had the right to review -- and in fact owned -- any electronic information stored on company computers. In a recent decision, the New Jersey Supreme Court carved out an exception to this rule. When an employee exchanges emails with her attorney through a personal web-based email account using a company computer, that email is attorney-client privileged even though the computer may automatically create a viewable copy of the email's text in temporary internet files on the company computer. In addition to ratifying, once again, the sanctity courts grant to the attorney-client privilege, the case highlights the importance of well-drafted company policies to enforce workplace rules and protect employer rights. Although the precedent applies only in New Jersey, the decision is significant for all employers.

Advice on Employees’ E-Mail (pdf).

You may have seen the November 24 Wall Street Journal article about a handful of recent court decisions finding that employees have a right to privacy in e-mails transmitted on personal e-mail accounts accessed on company computers. Importantly, under these and similar decisions, the employees would not have had such a right to privacy had their employers maintained a well-drafted technology use policy. Accordingly, it has become more important that employers draft, disseminate and enforce workplace technology use policies to defeat employees’ claims that personal e-mails on company computers, including communications with attorneys, are protected by a right to privacy. A well-drafted technology use policy should provide that:

Regulating Employee Email.

Considering the widespread availability of computers and email to employees, it's hardly surprising that union organizers and pro-union employees now look to an employer's email system as a prime means of organizing. Here, in the context of an important new legal decision, we discuss options for lawful and effective management and control of your e-systems, including in particular your email systems.

Waiver of Privilege By Employees' Use of Company Email Systems To Communicate With Their Attorneys (pdf).

Employers now can use workplace policies governing the use of technology to defeat employees’ claims that email communications with their attorneys over the company’s computer systems are privileged, according to a recent ruling by the New York County Supreme Court in Scott v. Beth Israel Med. Ctr., Inc. In Scott, a hospital employee used his work email account to communicate with his personal attorneys. When he later sued Beth Israel for breach of contract, the hospital’s attorneys found the communications on the hospital’s computer systems. The court denied the employee’s motion for a protective order, and ruled that the employee waived the attorney-client and work product privileges by using his work email account to communicate with his attorneys.
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