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Employee privacy: waiver of spousal privilege on employer systems

Employees should be cautioned when using computer systems belonging to an employer to communicate information that the employee considers privileged communications.  Many employers are implementing electronic policies which specify that employees have no expectation of privacy related to their use of the employer’s systems.  Employer policies usually include provisions which state the employer may monitor, retrieve and review all information received, accessed or stored on the employer systems.  With these policies in place the use of an employer’s computer or email system to communicate with a spouse or an attorney may result in the loss of any privilege that an employee may have had if they had used their own personal computers to communicate.

In a recent United States Court of Appeals for the Fourth Circuit decision, United States of America v. Phillip Hamilton, the court ignored a previous New Jersey Supreme Court ruling related to the non-waiver of martial privilege when a defendant used his employer’s email to communicate with a spouse.  The Fourth Circuit determined such use could be a waiver of spousal privilege under certain conditions.

Ordinarily, communications between spouses which are made in private are presumed to be confidential and therefore, subject to spousal privilege.    Any voluntary disclosure of such communications to a third party will waive any such privilege.   Courts have expanded the scope of privilege to include communications made via email as these communications may also carry a reasonable expectation of privacy by the author.   In the Hamilton case, Hamilton’s employer had a written computer policy which specified that email users had no expectation of privacy in the use of the company systems and that all information transmitted or stored was subject to inspection or monitoring by company personnel.   Additionally, every time an employee logged onto the company’s computer system they were reminded of the policy related to privacy of electronic communications. The Fourth Circuit held Hamilton’s use of his employer’s email systems to communicate with his wife constituted a ‘voluntary disclosure’ of those communications, thereby waiving any marital privilege contained in the communications.  

Before using an employer’s computer systems to communicate with an attorney or spouse employees must know what, if any, policies the employer has related to such communications or risk the contents of those communications being unintentionally discoverable by third parties.  

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