In a case reported by Massachusetts Lawyers Weekly, a Massachusetts trial court held that, despite warnings in an employee manual that Internet activity would be monitored, an employee’s email communication to his lawyer via a Yahoo personal email account was “made in confidence” and, therefore, subject to attorney-client privilege. Key to the decision was the failure of the employee handbook to state that email “content” would be monitored.
The facts of the case involved email sent vial Yahoo’s web mail interface using a company lap top. After the employee terminated his employment and returned his lap top, the company, NERA, hired a computer forensics expert that was able to retrieve “screen shots” of the emails sent via the Yahoo web interface that were saved in a temporary file on the lap top hard drive.
The decision is interesting in that the judge held that the company’s employee manual did not put the employee on notice that such communication would be monitored. The Company’s (NERA) employee handbook as quoted in the decision provided:
Any e-mail or voice mail sent or Internet site visited using Company resources is a reflection on the Company. Misuse of these resources can result in damage to the Company’s reputation and even legal action. The personal use of e-mail, the Internet and telephones should be kept to a minimum for both productivity and financial reasons. All computer resources are the property of the Company. To the extent permitted by law and any applicable agreements, the Company may, from time to time and at its discretion, review any information sent or stored using these resources. Be aware that e-mails are not confidential and the Company may read them during routine checks.
. . .
Network administrators can read your [electronic] mail! Please use your Inbox as a temporary message store; delete your messages or (if you need to) archive them to the appropriate project directory after you have read them. Each Outlook installation has been set up to either delete or archive messages present in the Inbox and Sent Items folders.
. . .
NERA does permit the use of Internet resources (dedicated or via dial-up) for personal use provided such use results in personal time savings that can be (at least partially) applied toward work. ... Please note that all Internet access is logged by user and the logs are archived for at least 30 days. We do not make a habit of prying but any misuse of Internet resources can be easily traced.
. . .
A log may be kept of users’ network activities to monitor network usage. This may include logins, Internet sites visited, and electronic mail sent or received and telephonic and voice-mail usage.At times, it may be necessary for computer or law enforcement personnel to monitor network traffic or desktop activities, including electronic mail.
Excerpts from NERA Employee Manual (emphasis added)
Despite these warnings in the employee handbook the Judge found that the employee was not on notice that copies of his personal email may be saved. The judge reasoned:
. . .
Based on the warnings furnished in the Manual, Evans could not reasonably expect to communicate in confidence with his private attorney if Evans e-mailed his attorney using his NERA e-mail address through the NERA Intranet, because the Manual plainly warned Evans that e-mails on the network could be read by NERA network administrators. The Manual, however, did not expressly declare that it would monitor the content of Internet communications. Rather, it simply declared that NERA would monitor the Internet sites visited. Most importantly, the Manual did not expressly declare, or even implicitly suggest, that NERA would monitor the content of e-mail communications made from an employee’s personal e-mail account via the Internet whenever those communications were viewed on a NERA-issued computer. Nor did NERA warn its employees that the content of such Internet e-mail communications is stored on the hard disk of a NERA-issued computer and therefore capable of being read by NERA.
NERA contends that any reasonable person would have known that the hard disk of a computer makes a “screen shot” of all it sees, which the computer then stores in a temporary file, including e-mails retrieved from a private password-protected e-mail account on the Internet. NERA further contends that any reasonable person would have known that these temporary files, although not readily accessible to the average user, may be located and retrieved by a forensic computer expert. This Court does not agree that any reasonable person would have known this information. Certainly, until this motion, this Court did not know of the routine storing of “screen shots” from private Internet e-mail accounts on a computer’s hard disk. Moreover, this Court notes that the American Bar Association issued its Formal Ethics Opinion 99-413 on March 10, 1999, entitled “Protecting the Confidentiality of Unencrypted E-Mail,” which outlined the various ways in which e-mails may potentially be seen by third parties, but nonetheless concluded that “lawyers have a reasonable expectation of privacy when communicating by e-mail maintained by an [on-line service provider],” such as Yahoo. The ABA Ethics Opinion did not even mention the possibility that such e-mails may be seen by anyone with access to the computer by examining the “screen shot” temporary file on the hard disk. Since a reasonable person in Evans’ position would not have recognized that e-mail communications with his private attorney made from a private Internet e-mail account could be read by NERA simply by examining the hard disk of his NERA laptop, he cannot reasonably have understood that these attorney-client communications could be “overheard” by NERA. Therefore, this Court finds that these attorney-client communications are protected by the attorney-client privilege.
. . .
[emphasis added]
National Economic Research Associates, Inc., et al. v. Evans, et al. (Lawyers Weekly No. 12-283-06) (10 pages) (Gants, J.) (Suffolk Superior Court) (Civil Action No. 04-2618-BLS2) (Aug. 2, 2006).
