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Finders/Keepers

By Shirley Lerner and Reagan Oden

Assume that your client has been sued by a former employee, and that a post-termination electronic search of the employee's laptop uncovers e-mails to legal counsel. Can the client keep these e-mails for use in its defense? Or, are these attorney-client privileged communications that must be returned to the former employee? Does use of the employer's computer system constitute a waiver of the attorney-client privilege, making all communications discoverable? Does it matter whether the e-mails are sent from a company e-mail account, as opposed to a personal e-mail account accessed via the company's computer system?

The answer to these questions is a resounding “it depends.” In recent years, courts around the country have found themselves grappling with these and other tricky issues at the intersection of technology and the law. The result is a developing body of case law that considers new questions concerning the scope of workplace privacy and the attorney-client privilege.

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