An Appeals Court in New Jersey recently issued an opinion that protected an employee from the employer’s attempt to use private e-mails sent from a personal e-mail account that was sent from a company computer. This case is a lesson to any employee anticipating a lawsuit against their employer. Be aware that the employer may try to use your e-mails against you in any future litigation. In this case, before the employee resigned and initiated her lawsuit, she sent e-mails using her personal, password-protected e-mail account. She accessed the e-mail and sent an e-mail from her company computer. After being notified of the employee’s lawsuit, the company’s lawyer reviewed the employee’s computer to discover her internet browsing history and discovered e-mails sent between her and her lawyer.
During the lawsuit, the employee’s attorney learned that the company’s lawyer had accessed and read the e-mails. The employee’s lawyer claimed that the communications were protected by the attorney-client privilege. The company argued that they were not protected or privileged because they were company property. The Court rejected the employer’s argument that e-mails were company property because they came from company computers. One of the lessons of this case is that employees need to be aware that employers will search for, mine for or try to discover any information that can be used against the employee. Clearly, if you are involved with or anticipate litigation against your employer, you should not be communicating with your lawyer through the company’s computer in order to ensure that your communications remain private. This issue also leads to broader issues of employer’s conduct in employment cases. This includes employer’s lawyers fishing through the internet to discover any social networking pages or blogs including Facebook or MySpace pages, that may contain information the company will try to use against you. Remember, once something is on your computer or the internet, it can be accessed by anyone and may be used against you – including your employer during litigation.