If you email your attorney from work, you risk being forced to share those thoughts with the opposing side at court. In the latest instance out of Delaware, executives at a Maryland company accused of mismanagement were compelled to turn over several emails to their attorney because the two executives emailed through their workplace email. In re Info. Mgmt. Servs., No. 8169-VCL (Del. Ch. Sept. 5, 2013). The court noted that the two executives could not cry uncle because other emails sent by them through personal email accounts showed that they understood their work emails were not private. The company had a well-established email policy informing employees that all emails were subject to review, as do many companies nowadays. The top executives knew about it. Many courts use a four-factor analysis to decide whether or not an employee who uses work email to communicate to an attorney must disclose what was written, and disclose any documents attached to those emails. E.g., In re Info. Mgmt. Servs. (p. 10, n. 3). Generally speaking, courts decide whether the emails are confidential and private under the “attorney-client privilege,” or discoverable because an employee lacks any expectation of privacy in his or her work email. Maryland and Virginia federal courts have used the same test. Maxtena, Inc. v. Jeremy Marks, No. DKC 11-0945 (D. Md. Mar. 26, 2013); Hanson v. First Nat'l Bank, No. 5:10-0906, 2011 U.S. Dist. LEXIS 125935 (S.D. W. Va. Oct. 31, 2011); see also In re Asia Global Crossing, Ltd., 322 B.R. 247, 257 (Bankr. S.D.N.Y. 2005) (a leading case). The fours factors, as applied this year in Maryland, are: (1) whether the employer had a policy banning personal use; (2) whether the employer monitored employees' use of email; (3) whether third parties have a right of access to the computer and the email; and (4) whether the employee was aware of the use and monitoring policy. This test is fact-specific. It does not permit generalities. One thing is for sure, though: Email your attorney from work and you open the door to a potentially time-consuming and expensive process in keeping those emails and attached documents private. If exposed, the disclosure may hurt your case.
