At Electronic Discovery Blog, "Employee’s motion to quash granted where employer cannot establish that employee had no expectation of privacy in using employer’s computer system:"

Requestor defendant employer subpoenaed third party producer to produce “all electronically stored information on all computers, laptops, PDA’s, portable media or other devices” between plaintiff employee’s husband and plaintiff regarding the litigation. Employee moved to quash on the grounds of overbreadth and that the records were protected by the spousal privilege. Employer responded that the records were not protected because of the employer state’s system use policy, which provides that “’no user should have any expectation of privacy in any message, file, image, or data created, sent, retrieved, or received by use of the Commonwealth’s equipment and/or access’” and “that state agencies have the right to monitor e-mail sent or received by agency users;” although the policy did permit personal use of work computers. Employer stated that as both employee and her husband were employees of the state at the time, the policy prevented any expectation of privacy. Id. at *3-*4.

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In the current case, there was “no…evidence…offered as to knowledge, implementation, or enforcement of the Policy:”

There is no showing that Mr. or Mrs. Sprenger were notified of the Policy by a log-on banner, flash screen, or employee handbook and whether Mr. or Mrs. Sprenger were ever actually aware of the Policy. It is unclear whether third parties had a right of access to the e-mails. The record also does not show whether the Policy was regularly enforced and whether the state employees’ computer use was actually monitored.

Id. at *13. The employer thus failed to meet its burden demonstrating employees’ waiver of the privilege. The court therefore granted the employee’s motion to quash, although inviting the employer to contact the Clerk of the Court to set up an evidentiary hearing on the waiver issue of they sought to pursue the matter further.

EDD notes that conflicts with U.S. v. Etkin, 2008 U.S. Dist. LEXIS 12834 (S.D.N.Y. Feb. 20, 2008), where the marital communication privilege could not be claimed in a different, but awfully similar, situation.

There is a serious conflict brewing here, one that I believe will inevitably end up in the Supreme Court.

On the surface, the question appears to be if e-mails sent from a work account can be privileged in a world in which an employer is free to monitor such e-mails, thereby eliminating any expectation of privacy (which is required to claim privilege).

Looking deeper, though, there is an even more basic question: who bears the burden of persuasion may in a privilege? In some sense, the answer is simple. Since a lack of expectation of privacy is generally thought of as a waiver of privilege, the burden is on the party requesting the information to show such privilege was waived. That’s what was done in the case at bar.

But that interpretation is not set in stone. The burden of establishing any privilege at all lies with the party trying to raise the privilege, and there is a good argument that, where the communication began on the employers computer system, it was never privileged to begin with, and thus we never even reach the question of waiver.

In Pennsylvania, Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 1259 (Pa. Super. Ct., May 21, 2007), clearly requires the party claiming the privilege first establish the communication was privileged — and as part of their analysis the court looked into the recipients of the email. A court could hold that, in a work email situation like the one at the beginning of this post, the email starts its life unprivileged, and so there’s no issue of waiver at all. That would put the burden on the party claiming the privilege, rather than the party requesting the document.

Either way, clients should be encouraged to play it safe and not send e-mails relating to personal legal matters from work accounts. Ask your clients about it today.