We just successfully defended a lawsuit that turned on a critical issue – are e-mails sent by an employee to his personal attorney using his employer’s computer protected by the attorney-client privilege? In our case here in Tennessee, the court held that the employee and his personal attorney had lost privilege over their communications. The e-mails could be used against the employee in the litigation and any alleged merits to the employee’s lawsuit quickly dissolved.

The linchpin issue in the court’s decision serves as a good reminder: Has your company, as an employer, expressly advised its employees that e-mails sent through the company system are not private and may be accessed by your company? That deciding factor is becoming consistent throughout a number of jurisdictions.

A company’s decision whether its employees have no right to privacy with regard to their company e-mail accounts and utilization of company computers is important. Once made, that decision must be adequately documented through a clear notice to employees and preferably through a well-worded provision in the company’s employee handbook that requires written acknowledgement of receipt of the handbook from the employees. In the event of the misfortune of subsequent litigation initiated by the employee, the simple step of properly documenting your company’s policy can sometimes mean a quick and successful end to the litigation.