Company Policy, Personal Emails, and Privilege Protection

It happens more than we know—employees use their company email to send personal messages, such as scheduling a medical appointment, checking-in with a child’s teacher, or sending a resume to an employer located on greener pastures.  The messages winding their way through the company’s email system contain various levels of private information—sending the resume may be more confidential than scheduling the dog’s grooming appointment.

But significant privilege issues arise when the employee communicates with her lawyer regarding personal legal advice. And those issues become amplified when the employee and her employer later become adverse in litigation and the company’s e-discovery searches uncover those personal, lawyer-related emails.  So, lawyers representing employees and lawyers representing employers should heed the court’s decision in Sickels v. McDonough, No. 4:21-CV-00963-JAR, 2023 U.S. Dist. LEXIS 201554 (E.D. Mo. Nov. 9, 2023), available here.  Let’s discuss it.

The Policy

Sherri Sickels worked as an electrician at the Department of Veteran Affairs’ St. Louis facility.  The VA permitted employees like Sickels to use the government’s email system for certain, restricted personal use, but made clear that employees had no expectation of privacy in those emails.  For instance, the VA’s computer policy, available here, stated—

And if that wasn’t clear enough, the VA employee handbook, pertinent portions available here, reiterated that—

A Lawsuit and Emails

Sickels believed that she was harassed and passed over for an internal job change because of her transgender status and ultimately filed a federal lawsuit asserting Tilte VII claims.  Her lawyer then did what all litigators do—sent document requests seeking the VA’s internal emails referencing Sickels.

After identifying search terms and applying those terms to emails of relevant custodians, including Sickels’ emails, the VA discovered 20 email communications between Sickels and her lawyer—the same lawyer representing her in the lawsuit.  These emails contained attachments and some referenced Sickels’ discrimination claims, including pleadings and discovery matters in the lawsuit.

For those puzzled by this, yes, Sickels and her lawyer communicated about the lawsuit, including about discovery, using Sickels’ VA email.

Privilege Issue

This presented the VA lawyers with an interesting privilege dilemma.  Sickels had not inadvertently produced these emails, rather the VA’s lawyers found them on the VA’s email system—the same system that Sickels’ discovery requests required them to search.

What to do?  Here, they took appropriate action.  Even though Sickels did not inadvertently disclose the privileged emails, the VA lawyers followed FRCP 26(b)(5) by sequestering the emails, notifying Sickels’ lawyer of the issue, and seeking a privilege ruling from the court.

Ruling

The court made short work of this privilege dispute, first recognizing that the attorney–client privilege protects from disclosure confidential communications between lawyer and her client.  The court then emphasized and explained the confidential element, stating this—

The communications must be confidential—that is, the client must reasonably expect that the communications will remain private.

Regarding the “reasonable expectation” requirement, the court applied the findings of other courts that an employee does not have a reasonable expectation of confidentiality over personal emails sent through her employer’s email system if two things are present.  First, the employer must have a policy in place that restricts employees’ use of the email system.  Second, the employer must have provided notice of this lack of confidentiality to the employee.

Here, the court easily found that the VA met these requirements.  Both the policy and handbook clearly stated that employees may use the agency’s email system for personal use on a limited basis but that in any event those emails were not private and subject to monitoring.  And the VA had evidence that Sickels had acknowledged that personal email use was not private.

The court held that Sickels had no reasonable expectation of privacy and the emails between her and her lawyer were not confidential.  And without confidentiality, there is no privilege and the court permitted the VA to use the 20 emails as it wishes to do.

POP Analysis

Several good takeaways here.  For lawyers representing employers, ensure that your client has an appropriate personal email policy that at a minimum declares that employees do not have a reasonable expectation of confidentiality over those personal emails.  But that policy may be no good unless you can prove the employee was aware of it, so include an acknowledgement of the non-confidentiality as you may perhaps do with acknowledgment of other policy and procedures.

For lawyers representing employees, it is common for them to email you from the workplace and, despite any non-confidentiality policy, may not fully appreciate the privilege repercussions.  When emails arrive from the employer’s email address, don’t respond, pick up the phone to explain the situation, and find a more secure and confidential avenue to communicate.

Finally, the VA lawyers’ approach to the situation represents good guidance for the rest of us.  Whenever you find yourself in possession of an adversary’s privileged information, whether through inadvertence or otherwise, the better practice is to sequester the emails, notify opposing counsel, and then seek a privilege ruling before using the information.