To Review Or Not To Review? Companies Face Difficult Decisions When Deciding Whether To Review Employees’ Emails With Counsel

by:    Peter J. Gallagher

Whether in the real estate industry or any other field, all companies today face the same issues when it comes to monitoring email communications by their employees, particularly when those communications are sent to outside lawyers.  The New Jersey Law Journal recently published an article that I wrote, "Reader Beware: The Evolving Ethics Of Reviewing E-Mails Between Employees And Counsel," which discusses a particularly draconian sanction imposed by a federal court in Colorado against a company (along with its in-house and outside counsel) that improperly reviewed email communications between a former employee and his counsel.  The article also discusses Stengart v. Loving Care Agency, Inc., a significant 2010 decision from the New Jersey Supreme Court holding that employees have a reasonable expectation of privacy when using company-owned computers to communicate with counsel, at least when such communications are made using a private, password-protected email account as opposed to the employee’s company account.  Although relatively far afield from the usual focus of this blog, I hope you will find the article interesting and informative.