We have written on the issues that arise when employees use their work computer for personal business. In that blog article, we referred to a California case in which an appellate court ruled that an employee’s emails to her attorney were not protected by the attorney-client privilege because the company had a written policy that informed employees that computers were not to be used for personal matters, that emails could be monitored to ensure that employees complied with the policy, and that employees should not expect any privacy in the use of their computers.

In local news, former Delegate Phil Hamilton raised a “marital privilege” objection to the use at trial of emails he sent to his wife. Certain communications to and from a spouse can be protected from disclosure. There were complicating factors to this case’s analysis.

Hamilton had sent the emails from his work computer at Newport News Public Schools. However, when he sent those emails, the school district did not have a policy prohibiting personal emails from work computers. As we learned in the Holmes case, that written policy prohibiting personal emails from work computers was a crucial factor in the Court’s decision to rule the attorney-client privilege had been waived.

After Hamilton sent the emails, the school district instituted a policy in which employees were advised that they had no “expectation of privacy” in the use of their work computers. The policy had been in effect for several years when a search warrant was issued on Hamilton’s work computer, where the emails were stored.

Consequently, the judge ruled that because Hamilton was aware that his employer had access to his work computer, and because he took no steps to protect the messages between him and his wife, and because he did not even delete the messages after the school district implemented the new policy, he waived the marital privilege because he knowingly made those otherwise confidential messages available to third parties.

Email is a quick and easy communication tool. However, more and more cases arise where private and privileged discussions become public because simple protections were not put in place. Employers and employees need to discuss policies and procedures with an experienced attorney to be aware of their rights and obligations.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

John Tarley

John Tarley

John is the firm's managing partner and chairs the firm's small business, zoning, and litigation practice areas.

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