![]() ![]() As a result of this analysis, the court held that Finazzo had waived the attorney-client privilege over the email his lawyer sent to his work account. In deciding the motion, the court applied a four-factor test first developed in In re Asia Global Crossing.6 Under this approach, the court evaluates: (1) whether the employer's policies permit or prohibit personal use (2) whether the company monitors use of the employee's email (3) whether third parties have a right of access and (4) whether the company advised the employee or whether the employee was aware of the use and monitoring policies. The court first noted that Finazzo had the burden of proving that the email was privileged, including showing that it was made and maintained in confidence. The district court rejected Finazzo's motion in limine to exclude the email. He thus sought to have it excluded from evidence in his criminal trial. The schedule of assets showed that Finazzo was a co-owner of South Bay with Douglas Dey, and also co-owned several other companies with Dey, none of which had been disclosed to Aéropostale.4 Finazzo claimed that (i) he never consented to or encouraged his attorney to send privileged emails to his work account, (ii) he did not know the lawyer was going to send the email to his work account, (iii) he immediately forwarded it to his personal account and deleted it from his work account, and (iv) he instructed his lawyer not to send emails to his work account again.5 Finazzo therefore argued that the email was privileged and should not have been produced to the government by Aéropostale. The investigating firm discovered an email to Finazzo from his personal trusts and estates attorney that had attached a list of Finazzo's assets for purposes of preparing a will. The scheme was uncovered during an unrelated internal investigation. The kickback scheme allegedly defrauded Aéropostale by depriving it of the ability to make informed and sound purchasing decisions, and by causing it to overpay for goods purchased from South Bay.3 Christopher Finazzo was charged with participating in a kickback scheme in which he received a portion of the profits on Aéropostale's purchases from South Bay Apparel. We begin by analyzing Finazzo, then discuss what an employee should consider in deciding whether to use work email for personal communications, and conclude by addressing the pros and cons of different personal use and privacy policies employers could implement.įinazzo involved a criminal prosecution, and ultimate conviction, of a former executive of clothing retailer Aéropostale. This article examines the practical implication of the Finazzo decision, from the perspective of both the employee and the employer. Finazzo reflects the recent trend of courts finding that the employee has no reasonable expectation of privacy in these circumstances, thereby vitiating any privilege.2 Finazzo,1 highlights the personal risk that an employee's use of a work email account to send or receive otherwise privileged and confidential communications-for example, with a spouse, personal lawyer, or doctor-will be deemed a waiver of the applicable privilege. District Court for the Eastern District of New York, United States v. Most policies also provide that the employer may review messages transmitted through or stored on work accounts and systems, regardless of whether the employer in fact conducts such a review.Ī recent decision from the U.S. In recognition of this reality, many employers now expressly permit limited incidental personal use of employer-provided email accounts and computer hardware (while specifically prohibiting illegal or offensive communications, such as transmitting pornography, engaging in sexual harassment, forwarding junk emails, and installing pirated, copyrighted or unauthorized materials). Indeed, given the hours spent at work and the ubiquitous nature of electronic messages as a mode of communication, it would be virtually impossible for many employees not to use their work accounts for personal messages. Most do so without seriously considering whether their employers permit or prohibit such non-business and unofficial use of their work accounts, or whether their employers could or do monitor and review such messages and the implications of such a right to monitor. ![]() Millions of Americans daily use their work email accounts, computer networks and smartphones to send and receive personal messages. ![]()
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