Privacy Issues in the Community College Workplace

the communications were discoverable because the employee did not have a reasonable expectation of privacy in the communications.

Although communications between spouses are presumed to be confidential, this presumption will be lost if the communication, “because of its nature or the circumstances under which it was made, was obviously not intended to be confidential.” 448 The court looked at whether the employee had a “reasonable expectation of privacy” in the e-mail communications made to his wife. If a reasonable expectation of privacy did not exist, the spouses could not have intended for the communications to be confidential and the marital privilege would not apply. In determining whether a “reasonable expectation of privacy” existed in e-mails transmitted through his employer’s e-mail system, the court applied the four- factor test in In re Asia Global Crossing, Ltd. 449 , which is:

1. does the corporation maintain a policy banning personal or other objectional use,

2. does the company monitor the use of the employee’s computer or e-mail,

3. do third parties have a right of access to the computer or e-mails, and

4. did the corporation notify the employee, or was the employee aware, of the use and monitoring pieces? 450

The answer to these questions is “highly fact-specific” and are “largely determined by the particular policy language adopted by the employer.” 451 In applying this test to the facts in In re the Reserve Fund Securities and Derivative Litigation , the court found that: (1) the employer had an e-mail policy that clearly banned personal use the employer’s email system, (2) while the policy stated that the employer will not “routinely monitor e-mail and will take reasonable precautions to protect the privacy of e-mail,” it also “reserve[d] the right to access an employee’s e-mail for a legitimate business reason . . . or in conjunction with an approved investigation”; (3) the policy specifically warned employees that their e-mail communications would be “automatically saved” and are subject to review by the employer and by disclosure to third parties, and (4) the employee admitted he was aware of the employer’s policy. Thus, the court found that the employee had no reasonable expectation of privacy in the e-mails and that the marital privilege did not apply. 452

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 143