Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Internet Law & StrategyKickerFeaturesTopicsLaw Firm ManagementTechnology Media and TelecomSectionsNewsLJN Newsletters

Ownership of e-Mail Is Not Clear

By Elise M. Bloom
'You've got mail.' Three little words that everyone loves to hear. But in today's society, where more time is spent at work or working remotely than anywhere else, one has to wonder: 'Whose mail is it anyway?' From online shopping to e-vites, almost every employee has used his or her corporate e-mail to send personal communications to friends and family ' despite the company's clear policy to the contrary. In the current litigious environment, what happens when an employee sends personal, allegedly confidential communications from work to his or her attorney or spouse? Can the employer lawfully access those e-mails, or do the attorney-client and marital privileges prohibit the employer from doing so? In answering this question, the key inquiry is always whether the employee had a reasonable expectation of privacy in the e-mails at issue.

The attorney-client privilege has long protected communications between an attorney and his or her client, provided that they are made in confidence and for the purpose of seeking legal advice. Fed. R. Evid. 501; see also, Knepp v. United Stone Veneer, No. 4:06-CV-1018, 2007 U.S. Dist. Lexis 65423 (M.D. Pa. Sept. 5, 2007). The privilege was devised to ensure free and open communication between attorneys and clients. Likewise, the marital confidential communications privilege protects confidential communications made by one spouse to another during marriage and exists beyond divorce. Id. It promotes open and honest communication between spouses, which, in turn, aims to facilitate marital harmony. In 2006, the Federal Rules of Civil Procedure were amended to include the phrase 'electronically stored information,' and, since then, courts have made it clear that the mode of communication does not destroy privilege. Scott v. Beth Israel Med. Center Inc., 17 Misc. 3d 934, (New York Co., N.Y., Sup. Ct. 2007). On the contrary, privilege extends to e-mails and other forms of electronic communication.

So when an employee uses the corporate server or an employer-provided computer to send communications to an attorney or spouse, how do courts determine whether privilege has been waived so that the employer can have free access to those communications? Does it matter if the employee uses a personal e-mail account or personal computer?

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
The Article 8 Opt In Image

The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.

Major Differences In UK, U.S. Copyright Laws Image

This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.

Beach Boys Songs Written Decades Ago Triggered Current Quarrel With Lawyers Image

There's current litigation in the ongoing Beach Boys litigation saga. A lawsuit filed in 2019 against Nevada residents Mike Love and his wife Jacquelyne in the U.S. District Court for the District of Nevada that alleges inaccurate payment by the Loves under the retainer agreement and seeks $84.5 million in damages.

Strategy vs. Tactics: Two Sides of a Difficult Coin Image

With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.

Transfer Tax Implications on Real Property Leases Image

The real property transfer tax does not apply to all leases, and understanding the tax rules of the applicable jurisdiction can allow parties to plan ahead to avoid unnecessary tax liability.