An employee is provided a computer with email access for the employee’s exclusive use in the course of his or her employment. The employer monitors the employee’s communications and has access to all employees’ computers and email files. If the employee were to make personal use of the employer’s computer by sending and receiving personal email messages through the employee’s assigned email account to and from, for example, the employee’s attorney for purposes of obtaining legal advice or the employee’s spouse concerning marital matters, would those communications be protected by the pertinent privilege? In Peerenboom v. Marvel Entertainment, 148 A.D.3d 531 (2017), the Appellate Division, First Department, addressed this question.
The court held that an employee has no expectation of confidentiality, and thus no privilege protection (attorney-client or spousal) when the employee uses the employer’s monitored email system, provided the employer has adequately warned its employees of the existence of such monitoring. However, attorney work product protection may still be available for those emails. As there are significant takeaways from these holdings, Peerenboom will be the focus of this column.
