e-mail -laptop

Consider, hypothetically, that you are in the process of a nasty divorce.  Using your company-owned laptop, you e-mail your divorce attorney about all of the times you cheated on your spouse, complete with action photos of each of your romantic soul mates and detailed descriptions of the unique talents of each one.

Now your spouse’s divorce attorney wants all of your personal e-mails sent or received on the company laptop.

Wait a minute – those are confidential (highly confidential) communications with your attorney.  Aren’t those communications protected by the attorney-client privilege?

 The answer turns on whether an employee has an expectation of privacy in a company owned computer.  In most states employees do not.  Even if an employee works in a jurisdiction where she has an expectation of privacy, if her employer has a written policy that permits the company to inspect e-mail messages on company-owned machines then no expectation of privacy exists. Your attorney (who likely retained copies of the e-mails even if you did not) likely will be duty bound to turn them over to your spouse’s attorney.


What if the company has never actually used its right to inspect private e-mails on company computers?  Makes no difference.  Your ‘reasonable expectation of privacy’ is the same; that is, zero.  You might as well have printed the e-mails on a 48′ billboard.

But what if you are the CEO and you own the company?  You still are an employee and the company’s right to inspect applies to you, too.

So how do you protect yourself?  If you are the CEO, change the company inspection policy to specifically exempt company officers from any right by the company to inspect the computers.  Otherwise, keep your personal business and company business strictly separate and never use company computers (or tablets, smartphones, printers, faxes, or other devices) for personal matters.

For an example case, see Miller v Zara.  See also Dennis Crouch’s discussion.

— Robert Yarbrough, Esq.