INTRODUCTION :: Barbara Hall, an administrative assistant, often arrives at work an hour and a half early solely to check her personal e-mails on her employer’s computer. Afterwards, “[i]n the grand tradition of Chekhov, or perhaps ‘Days of Our Lives,’ Barbara Hall carries on a dialogue throughout the workday with her two daughters, both of whom work at an event-planning company in Cleveland and use its e-mail system for such exchanges.” When she gets home from work, Barbara continues to use her workplace e-mail account to send personal e- mails.
Barbara Hall and her daughters are not alone. The average employee is estimated to spend nearly an hour a day on personal Internet use. While this behavior at work may be economically detrimental, “[v]ery few companies today have a rule against all personal use of electronic communication . . . . Employers are becoming more realistic about people’s need to send an occasional personal message from work.” Few companies will fire an employee solely for sending a personal e-mail from work, and the modern corporate attitude toward personal e-mail in the workplace is one of begrudged tolerance coupled with surveillance.
From 1996 to 2006, the percentage of employers monitoring of employee Internet use skyrocketed by more than 45%. As of 2006, 80% of employers regularly monitor employee Internet use. “[Employer computer] monitoring takes various forms, with 36% of employers tracking content, keystrokes, and time spent at the keyboard. Another 50% store and review employees’ computer files. Companies also keep an eye on e-mail, with 55% retaining and reviewing messages.” While an estimated 90% of companies that monitor employee communications notify their employees about the possibility of monitoring, many employees are oblivious to the fact that a permanent record may exist of their Internet and e-mail use at work.
This ignorance has resulted in serious consequences for employee litigants. At risk are the communications between attorney and client that have been extended special legal protections throughout history. This Note discusses workplace monitoring of these privileged communications.
Generally, American courts have held that employers are free to monitor employee computer use, and even government employers and supervisors can monitor employee computer usage without probable cause. Accordingly, employees who e-mail an attorney from the workplace, or from a workplace e-mail account, often lose the evidentiary protections of attorney-client privilege. This loss of privilege subsequently allows an employer to forensically recover a current or former employee’s otherwise privileged e-mails to use against the employee in litigation. This disclosure is particularly devastating to the employee, as these types of e-mails are often damning. The employee’s lawyer may even be vulnerable to a malpractice lawsuit for failing to advise the employee on how to take precautions to avoid waiver.
The typical workplace waiver situation involves an employee, using an employer- owned computer, communicating with an attorney regarding an action adverse to the employer. The employer usually has some sort of written policy providing notice to employees that their computer use is subject to monitoring.
In these workplace waiver cases, a schism is quietly developing. Some courts are discreetly (and perhaps inadvertently) abandoning the traditionally accepted narrow interpretation of attorney-client privilege in favor of a broad protective approach on public policy grounds. Others continue to adhere to traditional doctrine. A clash between these two schools of thought may be inevitable. The universal application of a rebuttable presumption that an employee has waived attorney-client privilege could avert a direct collision between these two schools of thought and establish a semblance of predictability in workplace waiver cases.
Part II points out the growing and unspoken abandonment of traditional approaches in these non-traditional cases. Part III describes the hodgepodge of emerging case law on the subject. Part IV attempts to identify the underlying source of difficulty in these abstruse cases. Part V teases the logically pertinent variables out of existing case law, and uses these variables as building blocks to construct a workplace waiver presumption. Finally, Part VI advocates the universal adoption of this workplace waiver presumption.
Barbara Hall’s e-mail conversations with her daughters “range from the mundane business of trading recipes to the more textured landscape of family illness and romantic relationships[,]”and would not be protected by attorney- client privilege. Yet, Barbara might be surprised to learn that if she were to e-mail an attorney to ask if she might be fired for sending personal e-mails on company time, her otherwise privileged e-mail could likely be used against her by her employer in any future litigation. She would then find herself out of work, and finally forced to use a personal e-mail account for personal e-mail.