An employee found out the hard way that utilizing her work email account to communicate with her personal attorney was a risky choice, after the court considering her employment discrimination claims found that any privilege related to such communications had been waived.

Our team can provide defensible discovery advice to help clients navigate both domestic and foreign data privacy laws and regulations. 

The plaintiff in Sickels v. McDonough, No. 4:21-CV-00963-JAR, 2023 U.S. Dist. LEXIS 201554 (E.D. Mo. Nov. 9, 2023) brought an action against her former employer, the Department of Veteran Affairs (VA), for employment discrimination. During discovery, the plaintiff propounded on the defendant requests for electronically-stored information (ESI) related to her claims. The defendant’s document review uncovered several emails between the plaintiff and her personal counsel regarding the claims at issue. Counsel for the plaintiff and the defendant were unable to agree regarding whether the documents were protected by privilege, and the defendant moved for a ruling on waiver of attorney-client privilege and/or work product privilege. The plaintiff failed to respond to the motion.

The court ruled that the plaintiff waived any attorney-client privilege over the emails, finding the plaintiff had no reasonable expectation of privacy on her work computer because:

• the defendant’s policies limited use of government office equipment for personal use and explicitly informed VA employees there was no expectation of privacy when using their work email;
• the plaintiff underwent annual training on these policies; and
• employees were required to acknowledge that their activities were not private every time they logged onto a VA computer system.

The court also found that any email attachments were not protected by the work product doctrine, because the party invoking the privilege must demonstrate its applicability and the plaintiff failed to respond to the defendant’s motion.