In general, courts have taken the position that where a company has issued a policy indicating that private use of company e-mail is not confidential, the employer can review the content of an employee’s personal e-mail communications when sent over company e-mail.
For example, in Peerenboom v. Marvel Entertainment, LLC, 148 AD3d 531 (1st Dep’t 2017), the New York Appellate Division, First Department, held that Marvel’s CEO Isaac Perlmutter’s use of Marvel’s email system for personal correspondence with his wife were not protected under the spousal privilege, where Marvel had an email policy in place which made clear the company owned all data on its system. Therefore, emails Perlmutter claimed were privileged, were actually discoverable in litigation.
Most states reject such privilege claims, relying on the standard articulated in In re Asia Global Crossing, Ltd., 322 B.R. 247, 256-61 (Bankr. S.D.N.Y. 2005) – as long as the company widely circulated a personnel policy explicitly warning that such communications could be monitored, and did not deserve confidentiality or privilege protection.
This notion has been useful for companies for many reasons, including when involved in employment litigation with an employee. However, a recent decision from a federal District Court in Maryland held an employee’s communication with an attorney utilizing company e-mail was protected from disclosure as a privileged communication, because the company policy was not clear that personal use of company e-mail was not confidential. Kreuze v. VCA Animal Hospitals, Inc., 2018 U.S. Dist. LEXIS 66667 (D. Md. Apr. 20, 2018). Among other things, the court noted that: “(1) the defendants personnel policy ‘does not affirmatively ban personal use by its employees’ but instead only warns them to keep such use ‘to a minimum’ and the [company] ‘did not actively monitor Plaintiff's email account during or after her employment,’ but instead merely reserved the right to do so.” Id. at 3-4. The Court also noted that the company did not update the company e-mail policy on a regular basis.
While this decision is not binding on New York courts, it does highlight the importance of company oversight and the need for employers to update their policies with regard to private use of company e-mail/communications. In addition, employers should be sure that their policies are clear as to whether company e-mail is not protected or private.