Larson's Emerging Issues & Trends
9/10/2009 4:19:03 PM EST
John K. Rabiej on Discovery of Employee Privileged Communications Sent or Stored Using Employer's Computer System
Chief of the Rules Committee Support Office of the Administrative Office of the United States Courts
In this Emerging Issues Analysis, John K. Rabiej, Chief of the Rules Committee Support Office of the Administrative Office of the United States Courts, reports that courts have developed an analytical framework to determine whether an employee’s expectation of privacy in workplace e-mails is reasonable and sufficient to protect the e-mails from discovery. Sprenger v. The Rector and Bd. of Visitors of Virginia Tech used the analysis, but also included a twist that provides a cautionary tale to parties seeking production of an employee’s e-mails that are subject to the confidential marital communications privilege.
“Employees routinely send or store private e-mails using their employer's computer system. Some of these communications may be privileged and include confidential e-mails to an attorney, a spouse, or a physician. These communications may be subject to a discovery request in litigation involving the employee or, more likely, the employer,” writes John K. Rabiej. “Sprenger v. The Rector and Bd. of Visitors of Virginia Tech, 2008 U.S. Dist. LEXIS 47115 (W.D. Va. June 17, 2008), offers a good illustration of the issues and analysis that courts rely on to determine whether such employee communications are protected from discovery under the work-product doctrine or under an evidentiary privilege, including the attorney-client, spousal, or patient-physician privilege. It also contains a twist that arises in cases involving confidential marital communications.”
Rabiej reviews the facts of Sprenger and explains the multi-factor analysis of objectively reasonable privacy expectation. He examines the lessons that are to be learned from Sprenger and offers best practices for employers and practitioners.
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