Against Employer Dumpster Diving for E-Mail
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Recent attorney client-privilege cases ojfer a modern understanding of reasonable expectations of employee privacy in the digital age. Today employees are sending an increasing number of electronic mail communications to their attorneys via employer-provided computers or other digital devices with an expectation of privacy and confidentiality. Historically, courts summarily dispensed with these matters by finding that an employer policy establishing employer ownership of any communications made through employer-provided devices eliminated any employee expectation of privacy in the communications and waived any viable privacy challenges to employer review of those communications. Nevertheless, within the last couple of years, several cases involving employee assertions of attorney-client-privilege protection in emails sent on employer-provided devices suggest new thoughts about reasonable workplace privacy expectations. As employees must communicate through employer-provided digital devices, day and night, these attorney-client-privilege cases help expose the fallacy of assuming employees cannot reasonably expect that emails will remain private if employers'policies mandate that such communications are not private. These new cases and related ethics opinions about privileged email offer a modern lens through which one may now view employee privacy expectations under a new paradigm that replaces the facade of assuming employees have no expectation of privacy due to employer policies. Digital-age expectations regarding employee use of "smart" cellular phones, portable laptops, and other employer-provided electronic devices to communicate beyond standard work hours leaves little expectation or reasonable opportunity for employees to communicate privately and confidentially by any other means. as a result, this article asserts that employer efforts to mine employer-provided devices for employee emails, after disputes arise, comprises a form of electronic dumpster-diving that should not be tolerated by courts, legislatures, or attorney ethics committees.
