On December 17, we reported on the Convertino case in which a judge found that the attorney-client privilege was not waived for emails exchanged on an employer’s network, even though the employer had access to them. It did not take long to find a case with virtually identical circumstances in which a Court reached the exact opposite result – a ruling that the privilege had been waived. This was a really bad result for the employee, because it meant that those emails could be used against her in court. See Alamar Ranch, LLC v. County of Boise, D. Idaho, No. 1:09-cv-00004, Memorandum Decision and Order (Nov. 2, 2009).

This case concerns a challenge of Boise County’s denial of a permit for Alamar to construct a home for troubled youth. As part of this action, Alamar subpoenaed the records of Jeri Kirkpatrick, an opponent of the project, as well as those of her employer, the Idaho Housing and Finance Association (IHFA), to obtain emails that Kirkpatrick had sent or received through her work email address. IHFA produced the emails, which were stored on its servers.

Kirkpatrick objected that the emails were protected under the attorney-client privilege. Alamar countered that IHFA’s employee policies stated that IHFA “reserved and intends to exercise the right to review, audit, intercept, access and disclose all messages created, received or sent over the e-mail system for any purpose.” Kirkpatrick responded that she was unaware that her emails had ever been monitored – although she was aware of another IHFA case where monitoring had occurred.

The Idaho Court concluded that the attorney-client privilege for the emails had been waived. According to the Court, the case presented “a simple scenario where the IHFA put all employees- including Kirkpatrick — on notice their emails would (1) become IHFA’s property, (2) be monitored, stored, accessed and disclosed by IHFA, and (3) should not be assumed to be confidential.” While Kirkpatrick stated she was not aware of any company monitoring, her bare assertion was insufficient to support a claim for nonwaiver. Rather, “It is unreasonable for any employee in this technological age – particularly an employee receiving the notice Kirkpatrick received – to believe her emails, sent directly from her company’s email address over its computers, would not be stored by the company and made available for retrieval.”

The Court found that the privilege also had been waived for emails her attorney sent to her company email address. The Court reasoned that “there is no question that her address – “Jeri@IHFA.org” – clearly put [her attorney] on notice that he was using her work e-mail address. Employer monitoring of work-based emails is so ubiquitous that [her attorney] should have been aware that the IHFA would be monitoring, accessing and retrieving e-mails sent to that address.”

On the other hand, the Court found that the privilege was not waived for emails sent by other clients of Kirkpatrick’s attorney to her attorney, and which copied Kirkpatrick at her work address. The Court reasoned that “laypersons are simply not on ‘high alert'” for privilege issues as attorneys “must be”, and would have reasonably assumed that they were having a confidential conversation with counsel.

The take-away from this case is the same as in Convertino. Employees should be very wary about making confidential communications to their attorneys from their employers’ email systems. Many courts will find that privileges have been waived for emails sent over a system over which an employer has retained a right of access. So if an employee is truly concerned about maintaining the privilege, he/she should send all email communications to his/her attorney from a private email account.