Article Tools:
National Economic Research Associates v. Evans
Posted by John Montana :: The PelliGroup
October 13, 2008
Nat’l Economic Research Assocs., Inc. v. Evans, LECG Corp., 21 Mass. L. Rptr. 337 (Mass. Super. Ct. Aug. 3, 2006). Services such as Yahoo mail make a screen shot of your activity in a temp file, such that password- protected e-mail you access is accessible later in the form of the temp file screen shot. In this case, the employer sought access to otherwise privileged attorney/client e-mail from a private, password-protected account (stored on an employer-owned computer as a temp file) based upon a theory that a reasonable person would have known of the screen shot temp file and that these would be accessible to a forensic expert; and that privilege was thereby waived. The court rejected this argument, stating that:
The court then concluded that:
“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.”
The court then concluded that:
“The bottom line is that, if an employer wishes to read an employee’s attorney-client communications unintentionally stored in a temporary file on a company-owned computer that were made via a private, password-protected e-mail account accessed through the Internet, not the company’s Intranet, the employer must plainly communicate to the employee that:
1. all such e-mails are stored on the hard disk of the company’s computer in a “screen shot” temporary file; and
2. the company expressly reserves the right to retrieve those temporary files and read them.
Only after receiving such clear guidance can employees fairly be expected to understand that their reasonable expectation in the privacy of these attorney-client communications has been compromised by the employer.”
This is one of a series of recent cases potentially limiting the scope of employer policies granting the employer unlimited access to data on employer-owned computers. The usual rule of thumb that employer access to data is virtually unlimited if stated in a policy may need re-visiting, or at least employers may have to draft such policies with considerably more care and in more detail in the future.
2. the company expressly reserves the right to retrieve those temporary files and read them.
Only after receiving such clear guidance can employees fairly be expected to understand that their reasonable expectation in the privacy of these attorney-client communications has been compromised by the employer.”