Who Owns Your eMails?

[CurtEgerer]

I'm hoping one of our attorney friends might be able to help me. If eMails with attachments are sent to employee Joe Blow via his employer's business eMail - i.e., joeblow@acmebuildingsupply.com - does Acme Building Supply now 'own' these eMails and attachments since they are permanently recorded on their eMail server?

Does the employer have the right to read the eMails and attachments, regardless of whether there might be disclaimer language stating that the eMails are confidential?

[id10t]

Employers resources, employers rules. If you want to keep something truly confidential, then it is time to learn about encryption

[the]

Originally Posted by CurtEgerer

I'm hoping one of our attorney friends might be able to help me. If eMails with attachments are sent to employee Joe Blow via his employer's business eMail - i.e., joeblow@acmebuildingsupply.com - does Acme Building Supply now 'own' these eMails and attachments since they are permanently recorded on their eMail server?

Does the employer have the right to read the eMails and attachments, regardless of whether there might be disclaimer language stating that the eMails are confidential?

What do you mean by "own?" The employer could open and read the e-mails without "owning" them.

Does the employer have the right to read the e-mails and attachment? The employee manual of most companies says "yes." That would be an enforceable policy/agreement.

If there is no written policy or agreement in place regarding e-mails, I'm not sure what the answer would be, but my guess would be that it is the company's email system, and they are entitled to read any e-mails that come into it.

At least part of the analysis would seem to be an "expectation of privacy" analysis, and I can't see many courts finding that an employee has an expectation that e-mails sent to him at his business e-mail address are private. Esp. since there likely is a company policy that company resources are to be used only for company business.

[Joe Bob]

Senders, receivers and who ever owns the machine.....

[Porsche_monkey]

As an employer: I expect my employees to conduct their private business through a private email account, such as gmail or yahoo. I don't go looking through their emails, but when an employee quits or is fired he is locked out of his email and I keep them on the assumption they are all business related.

[CurtEgerer]

By 'own', I suppose I mean legally entitled to read and use the information contained therein.

[CurtEgerer]

Let's make a more specific hypothetical:

An employee leaves a company and goes to work for a competitor. There is a dispute regarding monies owed to the ex-employee. Various eMails including sensitive attachments detailing some of the company's financial information are traded amongst the attorneys representing the 2 parties.

The attorney for the ex-employee is CC'ing all eMails and attachments to his client via his new business eMail. In affect, the company's financial information is now on their competitor's server ......

[Rick Lee]

For myself, when I get my commission tracking file each month sent to me via email, I forward it onto my personal email, so I can always refer back to it. I have left a few jobs in the past, even on good terms, when they tried to screw me out of last checks or commissions. Also, a lot of job listings in sales fields ask for a "documentable track record or success" and such. I figure if I have a string of emails showing my name in the top 20% of sales people here or averaging above 100% of goal every month, that will suffice for future job applications.

[the]

How are the financial documents being traded between the two attorneys? In other words, who is sending what to who? How is the ex-employee's attorney getting the e-mails and sensitive attachments?

I assume the ex-employee's attorney is not the one sending the e-mails and attachments to the employee's attorney. That would raise the question of "How did the ex-employee's attorney get those e-mails and attachments??" If he is getting them from his client, then his client stole them from his ex-employer.

If the ex-employer's lawyer is sending those e-mails, including the attachments, to the ex-employee's lawyer, and the ex-employee's lawyer is sending them to his client, then I don't think it matters where the client is. By sending those things out to opposing counsel, the employer's lawyer is waiving any privilege or confidentiality.

UNLESS there is a protective order or confidentiality agreement in place between the lawyers in the matter (which would say something like the docs can't be shown to any third parties, outside of the parties in the case and their lawyers). If that is the case, and the ex-employee's lawyer is getting the e-mails and attachments from the other side, the lawyer would be very foolish to send those documents to his client at a competitor's server.

[CurtEgerer]

>>By sending those things out to opposing counsel, the employer's lawyer is waiving any privilege or confidentiality.<<

That can't possibly be correct. You're saying the ex-employee's lawyer can now publish that information to the public? The eMails are part of negotiations between the parties and the eMails generated by the employer lawyer have a full confidentiality disclaimer regarding the information.

Edit: Oops, just read your last paragraph - that is pretty much the scenario. I think they are in heap big trouble.

[MRM]

In general, emails and anything else generated by an employee during employer time or using employer resources belong to the employer. If an employee creates something at home and on his own time and simply transmits it via his empoyer's email, I don't think he has lost ownership, but the employee can't complain if the information is no longer confidential and it opens the door to the argument that it was the product of corporate resources and therefore belongs to the company.

[SlowToady]

From everything I've read, the company does. Work email is NOT private, and there is no expectation of privacy. I think there have been court cases about this? As I understand it, the employer has every legal right to read, filter, whatever, any email going into or out of their email servers.

Encryption? I'd think they could subpoena the employee to reveal the key?

Hypothetically speaking, someone made a very, very big mistake.

[CurtEgerer]

MRM - What is your opinion on eMails received by the employee? Assume the employee is using his work eMail address as his preferred contact and that the eMails are part of a series of eMails back and forth between the parties, so they couldn't be characterized as unsolicited. Do those received eMails belong to the employer?

SlowToady - my thoughts exactly.

[Hugh R]

I know for a fact that at Disney, any and all emails with the CEO Bob Igar's name get flagged in the server and are read by a real live person before they are released.

[MRM]

Boy, I think deliberately using corporate resources to receive the email at least opens the door for the employer to claim ownership. But if the emplyee didn't own the content of the email when it came in then he couldn't convey ownership to the employer simply by receiving it at work. I think it depends on whether the employer can prover corporate resourses were used to create the information in the email.

[the]

The employer's corporate resources were not used in the creation of the information in the email. The e-mail was only received by the employer.

I don't think the word "owner" or "ownership" is being used properly here, and is causing confusion. There's a difference between owning something and simply looking at it. "Ownership" of the financial information of course does not pass to the employer who receives it on his system. That would be like me e-mailing a copy of a patent to you. If I do that, you can of course read the patent, but you don't get any "ownership" of it.

At the end of the day, if the ex-employer found out that their financial info is now on a competitor's server, they likely could get it back, if they really wanted to. In disclosing the information in a confidential settlement discussion, they certainly did not consent to it being sent to a competitor's server, where the competitor could get to it. Of course, if the competitor has already seen it, the "cat's out of the bag," and an order telling them to delete it from the system probably doesn't do much.

This situation actually raises a lot of interesting, unique issues. Because it's not the employee's privacy rights being violated. That would be the normal situation (employee gets a private e-mail on the work system, and employer reads it). This situation adds an additional layer - the employee doesn't really care if the info is read by the employer, it is a *third party* (the ex-employer) who would have the complaint. And they are an "innocent" third party in that they only gave their info to the atty during confidential settlement communications, with the understanding it would not be disclosed to a third party. They didn't intentionally or negligently disclose the financial information to anyone, did everything right, yet now a competitor has the info. It seems like they should have a remedy for that.

So thinking about it a bit more, if the current employer reads and uses the info, I suppose an argument could be made that they did something wrong. Arguably, they know they are not supposed to be seeing it or using it - in other words, it is like an "inadvertent" disclosure to them. It could be argued that the e-mail was similar to an e-mail being inadverently sent to someone. So whatever the rules are for an unintended recipient of a e-mail may arguably apply to the new employer.

[Joe Bob]

Corporate policy usually dictates that unsolicited email be consigned to spam filters or the sender blocked. Employees should NOT use the company email for eBay or list serves like Rennlist or get notices from Pelican on a thread.....so unsolicited mail should be the employee's responsibility to stop or forward to IT.

[the]

????

There's no issue involving unsolicited e-mails here.

[CurtEgerer]

That's the problem - how do you un-ring the bell? Once the competitor reads the information, even inadvertently, they know everything they need to know. Or if they claim they haven't read it - how could it be proven? To make matters worse, this is a competitor in a different state who is known to have considered opening an office here. They now have a very good handle on the potential revenues available to them ....

Of course, the "ex-employee" has a Non-Competition Agreement that specifically prohibits the sharing of any information.

[the]

If they have opened and read it, and by doing so essentially get the information they need, you really can't unring the bell.

If they claim they haven't read it, and you think they did, you'd have to prove it the same way you prove anything in court - by evidence. There would likely be several sources of evidence in this case. Witnesses ("I saw CEO Joe open and read it." or "CEO Joe told me he read it.") Or probably some technical evidence, like a forensic computer expert going into the system and figuring out whose computers have opened the attachment. That would seem to be a legally (lawsuit, lawyers, motions, court orders) and technically (expensive experts) expensive process.

The ex-employee would probably argue he's done nothing wrong and has not violated the non-compete. He got the e-mail, but never showed it to anyone, if the employer went into the system and got it themselves, he didn't know or expect that would or could happen.

In any event, the lawyer who sent that e-mail to the ex-employee to his work e-mail address was not very smart or careful.