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Attorneys Face Challenges in Protecting Client Communications in the Age of Email

In today’s society, email communications are a common occurrence. Likewise, email communications to and from an attorney are routine. Recently, a Tennessee trial court ruled on the admissibility of email communications between an attorney and his client when those communications took place through a client’s email or computer system belonging to the employer.

There are no published appellate opinions in Tennessee addressing the issue of whether email communications through a client’s company system are protected by the attorney-client privilege in subsequent litigation by that client against an employer. The purpose of this article is to provide an overview of the issue of email communications and the attorney-client privilege in light of a recent Tennessee trial court decision.[1] First, it provides an introduction to the attorney-client privilege in Tennessee. Next, it discusses a sampling of recent case law from other jurisdictions to provide an overview of the factual scenarios under which this issue arises.[2] Then, following a discussion of the American Bar Association’s formal opinion on email communications, this article reviews a recent Tennessee trial court decision that held email communications were not protected when they occurred through a client’s company system.

The Attorney-Client Privilege in the State of Tennessee

The attorney-client privilege is the oldest privilege recognized in Tennessee both at common law and by statute.[3] It is designed to protect from discovery those communications between an attorney and his client relating to a matter for which the client has sought professional legal advice, and its purpose is to ensure full and frank communications between the attorney and the client without fear of compelled disclosure to any third party.[4] The United States Supreme Court has commented: “[T]he privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client.”[5]

A party asserting attorney-client privilege must prove that the communications were “made pursuant to the attorney-client relationship” and “with the intention that the communications remain confidential.”[6] The attorney-client privilege does not encompass all communications between an attorney and a client.[7] The privilege normally extends both to the substance of the client’s communication and to the attorney’s advice thereto.[8] To invoke the protection of the attorney-client privilege, the burden is on the client to establish the communications were made pursuant to the attorney-client relationship and with the intention that the communications remain confidential.[9] Courts review application of the doctrine on a case-by-case basis.[10]

The attorney-client privilege belongs to the client and thus can be waived by the client.[11] The privilege is not absolute and does not protect all communications between an attorney and a client.[12] To receive the protection of the privilege, the communication must involve the subject matter of the representation and must be made with the intention that the communication will remain confidential.[13] A client who divulges the communications he or she seeks to protect has expressly waived the attorney-client privilege with respect to the reported communications.[14] Additionally, a party may impliedly waive the privilege through actions that place the protected information at issue.[15]

Case Law from Other Jurisdictions Addressing the General Rule of Email Communications to and from an Attorney Using Company System

Until recently, no published opinion existed in Tennessee analyzing or developing a standard for the application of privilege to email communications. That standard, however, has been developing outside of Tennessee for a number of years. Courts from other jurisdictions have established a general rule that email communications sent over the company system between an employee and his or her personal attorney are not privileged in the event an employer has expressly advised its employees that emails sent through the company system (using either a company email account or sometimes even a personal email account) are not private and are accessible by the employer. As one might expect, employers are gaining access to their employees’ email communications to defend against those employees’ lawsuits.

In Scott v. Beth Israel Medical Center Inc.,[16] the plaintiff was a hospital administrator who filed a lawsuit against his former employer seeking $14 million for wrongful termination. The employer obtained email communications between the plaintiff and his attorney from the company email system. The defendant’s email policy, located in the company’s policy and procedure manual, stated that hospital employees had “no personal privacy right in any material created, received, saved, or sent” using the employer’s computer system.[17] Further, the policy provided that the employer reserved the “right to access and disclose such material at any time without prior notice.”[18]

The plaintiff moved the New York Supreme Court for a protective order requiring the defendants to return to the plaintiff all email correspondence between the plaintiff and his attorney.[19] The employer in Scott argued that the emails were not protected by the attorney-client privilege as they were not made in confidence. The court found that the plaintiff had both actual and constructive knowledge of the company email policy.[20] While acknowledging that under New York Civil Practice Law and Rule 4548 a communication will not lose its privileged character solely because it is electronically communicated,[21] the court held that the plaintiff’s use of the defendant’s email system to communicate with his attorney in violation of the defendant’s email policy rendered any communications made not in confidence. The plaintiff’s contention of privilege, therefore, was rejected.[22] Accordingly, the court in Scott declined to issue a protective order that allowed defendants to retain the email correspondence between plaintiff and his attorney for use in the lawsuit.[23]

In Kaufman v. SunGard Investment Systems,[24] the plaintiff filed suit alleging, in part, breach of contract claims in connection with the defendant’s acquisition of the plaintiff’s assets and the hiring of Kaufman as a senior executive. The plaintiff sought from the District Court of New Jersey a declaration that certain email communications between plaintiff and her attorney, which were sent from and received on the company email system during the plaintiff’s employment, were protected from discovery. The employer’s policy provided that “any email may be subject to monitoring, search, or interception at any time” without prior notice and that employees should not expect any times created with or stored in the company’s computer system would remain private, even if password protected.[25] The magistrate judge ruled that the employee had no reasonable expectation of privacy as to the email communications with her attorney.[26] Further, the magistrate judge held that any privilege attached to the communications was waived because the plaintiff knowingly utilized the company network with the knowledge that the company could search and monitor email communications at any time without prior notice. The United States District Court upheld the ruling of the magistrate judge.[27]

In Long v. Marubeni Am. Corp.,[28] the plaintiffs filed a civil rights action against their former employer. In this case, the plaintiffs used computers that were assigned to them by their employer to send and receive email messages to each other and their attorney. In doing so, the plaintiffs used private password-protected email accounts, not company email accounts.[29] The employee handbook in Long, which was prepared in part by one of the plaintiffs, cautioned its employees that “all communications and information transmitted by, received from, created or stored” in the company computer system was company property.[30] The handbook further advised that personal use of the computer systems was prohibited. Finally, the handbook advised that the company had the right to monitor its systems and that the employees had “no right of personal privacy in any matter stored in, created, received, or sent over the email, voice mail, word processing, and/or Internet systems provided” by the employer.[31] 

The U.S. District Court for the Southern District of New York noted in Long that the plaintiffs elected to use the computers assigned to them. It emphasized that plaintiffs’ use of the company computer systems for personal purposes was prohibited, that plaintiffs had no right of personal privacy in any data stored in the company computer system, and the defendant-employer had the right to monitor all data flowing through its systems. “The plaintiffs disregarded the admonishment [of their employer] voluntarily and, as a consequence, have stripped from the email messages … the confidential cloak with which they claim those communications were covered.”[32] The court held, therefore, that the email communications were not shielded from disclosure by virtue of the attorney-client privilege.[33]

In Holmes v. Petrovich Development Co. LLC,[34] the plaintiff filed suit against her former employer asserting claims of hostile work environment, sexual harassment, retaliation and constructive discharge. The California Court of Appeals held that the employee’s emails to her lawyer were not protected by the attorney-client privilege. The holding is based on facts similar to those previously discussed — the employer had an express policy that, among other things, prohibited personal use of company systems and warned employees they had no right of privacy with respect to personal emails. Most notably, the court commented that the employee’s use of her company computer to communicate with her attorney was “akin to consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion … would be overheard.”[35]

The court in Holmes held that “[b]y using the company’s computer to communicate with her lawyer, knowing the communications violated the company computer policy and could be discovered by her employer due to company monitoring of email usage,” the employee did not communicate in confidence and the communications were not protected by the attorney-client privilege.[36] Similar to the Scott case in New York, the California statute that preserves privilege over electronic communications[37] did not override the employer’s policy, and that policy as well as the employee’s agreement to it made any expectation of confidentiality unreasonable.[38]

American Bar Association Formal Opinion on Email Communications

In 2011, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued a Formal Opinion in light of this very issue — advising attorneys to warn clients about the dangers of email interception in certain situations.[39] The opinion drives home the point that a reasonable expectation of confidentiality does not exist in all email situations. The ABA ethics opinion states that attorneys must warn clients of the risks associated with sending and receiving substantive emails in situations where there is a danger of a third party being able to read or access those emails. In particular, attorneys must issue such warnings if they reasonably suspect the client will use a business computer to send emails. Factors used to determine if an attorney should issue warnings include whether the client has emailed the lawyer in the past, whether the attorney knows the client has access to employer-provided electronic communication tools, and whether the attorney is aware of company or state rules guaranteeing email privacy. “While attorneys can consider these factors to determine if clients should be expressly warned about the dangers of sending emails, the best practice is for all attorneys to simply advise clients against sending emails on employer computers, public computers or borrowed computers.”[40]

Tennessee Opinion Addressing the Issue of Email Communications on Company System and the Attorney-Client Privilege

Many defense attorneys likely have encountered the issues of email communications and the attorney-client privilege in the course of their litigation practice. Some practitioners include in their engagement letters an email communication warning consistent with the ABA Formal Opinion. Nevertheless, there are no published appellate opinions in the State of Tennessee addressing the issue of whether email communications through a client’s company system are protected by the attorney-client privilege in subsequent litigation by that client against an employer.

Recently, a Tennessee trial court held email communications were not protected when they occurred through a client’s company system, providing some authority under Tennessee law for the claim of privilege to be defeated when an employee’s communications with a personal attorney occurred through a company email account. In the case of Forrest v. Lewis, the Cheatham County Chancery Court was faced with the issue of whether the plaintiff’s and his attorney’s communications through a company email account were privileged.[41] The court held that privilege was lost and the emails could be used by the defendants in support of their defense and counterclaims.

The key focus of the Forrest v. Lewis opinion was a determination of what reasonable expectation of confidentiality the plaintiff had in his company email account. The plaintiff, being a fifty-percent member in the limited liability company and contending he served as the chief operating officer, was deemed bound by an employee handbook. That handbook contained clear language that emails conveyed through the company’s system were “property of the company and subject to disclosure to third parties.”[42] Accordingly, the plaintiff had “no reasonable expectation that his communications to his attorney using company email were private.”[43] Instead, the emails conveyed through a company email account did not fall within the attorney-client privilege.

The rationale of the Cheatham County Chancery Court is consistent with that used in various other jurisdictions. In the event a company policy extinguishes an expectation of privacy, emails conveyed through a company’s system will not be protected by the attorney-client privilege. The Cheatham County Chancery Court also took particular interest in the American Bar Associations’ Formal Opinion.[44] In light of that decision, Tennessee attorneys should be mindful of what may now be a duty consistent with that set forth in the American Bar Association’s Formal Opinion — an obligation to “warn the client about the risk of sending or receiving electronic communications using a computer or other device, or email account, where there is significant risk that a third party may gain access.”[45]

Conclusion

Generally, the attorney-client privilege promotes a client’s candid discussions with his or her attorney. An erosion of that privilege by allowing a client’s attorney communications to occur through a device or computer owned by a third party (such as an employer) can be detrimental to the client’s case. Accordingly, attorneys must be cognizant at all times of the email account his or her client chooses to use for communications and counsel the client accordingly. Further, attorneys should properly and promptly warn their clients of the risks associated with electronic communications so as to avoid client’s inadvertent waiver of privilege when a company email account or even a company-provided computer or mobile device is used.

Notes

  1. This article does not address situations involving public employees and protections afforded under the Fourth Amendment as addressed in Ontario v. Quon, 560 U.S. 746 (2010).
  2. Further review of case law can be found in various articles on related topics. See, e.g., Steven C. Bennett, “Ethical Limitations on Informal Discovery of Social Media Information,” 36 Am J. Trial Advoc. 473, 496 n. 101 (Spring 2013). The New Jersey Supreme Court opinion in Stengart v. Loving Care Agency Inc., 990 A. 2d 650 (2010), also contains an extensive review of case law applicable to email communications that take place through the employee’s personal email account using an employer’s computer.
  3. Federal Ins. Co. v. Arthur Anderson & Co., 816 S.W.2d 328, 330 (Tenn. 1991); Boyd v. Comdata Network Inc., 88 S.W.3d 203, 212 (Tenn. Ct. App. 2002) (citing, among other cases, McMannus v. State, 39 Tenn. (2 Head) 213, 215-16 (1858)).
  4. Flowers v. Tenn. Trucking Assn. Self Insur. Group Trust, 209 S.W.3d 602, 615-17 (Tenn. Ct. App. 2006).; Boyd, 88 S.W.3d at 212; see also Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
  5. Upjohn Co., 449 U.S. at 389.
  6. Flowers, 209 S.W.2d at 616; see also Bryan v. State, 848 S.W.2d 72, 80 (Tenn. Crim. App. 1992) (citing Hazlett v. Bryant, 241 S.W.2d 121, 124 (Tenn. 1951)); 21 Tenn. Jur. PRIVILEGED COMMUNICATIONS § 4 (2008).
  7. See, e.g., Boyd, 88 S.W.3d at 213.
  8. Id. (“The privilege applies not only to the client’s communications but also to the attorney’s communications to his or her client when the attorney’s communications are specifically based on the client’s confidential communications or when disclosing the attorney’s communications would, directly or indirectly, reveal the substance of the client’s confidential communications.”).
  9. Bryan, 848 S.W.2d at 80.
  10. Id.
  11. Boyd, 88 S.W.3d at 213 (relying on Smith County Educ. Ass’n v. Anderson, 676 S.W.2d 328, 333 (Tenn. 1984)).
  12. Flowers, 209 S.W.3d at 616.
  13. Id.
  14. State v. Buford, 216 S.W.3d 323, 326 (Tenn. 2007) (citing Cooper v. United States, 5 F.2d 824 (6th Cir. 1925)).
  15. Bryan, 848 S.W.2d at 81.
  16. 847 N.Y.S.2d 436 (Sup. Ct. NY 2007).
  17. Id. at 439.
  18. Id.
  19. The motion followed defendant’s refusal to return the emails after defendant notified plaintiff that the emails were in defendant’s possession. Similarly, in Tennessee, an attorney has a duty under the Tennessee Rules of Professional Conduct to terminate review and use of privileged information that has been disclosed inadvertently or by a person not authorized to disclose the information, notify the person or his lawyer of the disclosure, and then either abide by that person’s or lawyers instructions or refrain from using the information until obtaining a proper disposition from a court. Tenn. S. Ct. R. 8, R. Prof. Conduct 4.4(b) (effective Jan. 2, 2011).
  20. Scott, 847 N.Y.S.2d at 443.
  21. The New York statute provides:
    No communication privileged under this article shall lose its privileged character for the sole reason that it is communicated by electronic means or because persons necessary for the delivery or facilitation of such electronic communication may have access to the content of the communication.
    N.Y.C.P.L.R. 4548.
  22. Id. at 440 (“the effect of an employer email policy … is to have the employer looking over your shoulder each time you send an email).
  23. Id. at 444.
  24. No. 05-CV-1236, 2006 U.S. Dist. LEXIS 28149 (D.N.J. May 9, 2006).
  25. Id. at *11-*12.
  26. Id. at *12.
  27. Id. at *11, *15.
  28. No. 05-Civ-639, 2006 U.S. Dist. LEXIS 76594 (S.D.N.Y. Oct. 19, 2006).
  29. The employer provided company computers to its employees. When employees accessed their personal email accounts through the Internet, an administrative function within the computer stored images of those personal emails in separate folders accessible by authorized company employees. Id at *3.
  30. Id. at *2.
  31. Id. at *3.
  32. Id. at *9.
  33. Id. A result contrary to Long occurred in Stengart v. Loving Care Agency Inc., 990 A.2d 650 (N.J. 2010). In Stengart, an employee used her company computer to access a personal Web-based email account. Her communications with her attorney contained the standard warning so often used — confidential, proprietary and protected by privilege. However, the employer’s policy simply didn’t address this situation. The employee’s personal emails, therefore, were deemed privileged. Id. at 665.
  34. 191 Cal. App. 4th 1047 (Cal. App. 3d Dist. 2011).
  35. Id. at 1051.
  36. Id. at 1051-52.
  37. California Evidence Code § 917(b) provides in part: “A communication . . . does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication.”
  38. 191 Cal. App. 4th at 1071. Cf. Scott, 847 N.Y.S.2d at 440 (finding that otherwise privileged communication was not made in confidence because of the employer’s policy and noting that the statute did not “absolve an attorney of his or her responsibility to assess the risk of communicating by email with a client”).
  39. ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 11-459 (Aug. 4, 2011) (Duty to Protect the Confidentiality of Email Communications with One’s Client).
  40. Id.
  41. No. 15402, 2012 WL 7655289 (Tenn. Ch. Cheatham County Dec. 4, 2012) (Trial Order). Defendant-employer accessed plaintiff’s company email account following the plaintiff’s departure. Upon discovery of the plaintiff’s email communications with his attorney, Defendant’s counsel provided opposing counsel a Rule 4.4 notice and filed a Motion for Judicial Determination as to the Proper Disposition of Email Communications, consistent with the requirements of Tenn. S. Ct. R. 8, R. Prof. Conduct 4.4(b) (effective Jan. 2, 2011). Id.; see supra n. 19.
  42. Id. at *3.
  43. Id.
  44. Id. at *3 (quoting Opinion 11-459 at p.1).
  45. Id.

M. KIMBERLY STAGG and JOHN E. ANDERSON SR. practice in the Nashville office of Dickinson Wright PLLC. Stagg practices in the areas of bankruptcy, general corporate and commercial law. She counsels manufacturing companies in addressing and finding practical solutions to legal and business issues from corporate, troubled customer and supplier, and bankruptcy litigation to general business matters.

 

 

Anderson specializes in complex commercial and business litigation, including financial institution litigation, mortgage lender and servicer litigation, and products liability defense litigation. He is the head of the firm’s transportation and logistics practice group and is a member of the board of directors of the Transportation and Transportation Security Law Section of the Federal Bar Association.