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Do You Have Reasonable Expectation of Privacy When Using Work E-mail?

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Maybe not.  Unfortunately for a former Aeropostale executive, the United States District Court for the Eastern District of New York recently held that he did not have any reasonable expectation of privacy in an e-mail he received from his private attorney at his work address.  The case of United States v. Finazzo highlights the risks inherent in using your employer’s e-mail for personal communications–especially when those communications would otherwise be privileged.  In this case, the e-mail at issue ultimately lead to the employee’s termination, and subsequent prosecution.

Mr. Finazzo–a former executive at clothing retailer Aeropostale–was charged with a fraudulent scheme in which he allegedly received kickbacks from certain transactions between Aeropostale and South Bay Apparel, Inc., a clothing vendor controlled by another individual (Douglas Dey).  Although the indictment alleges that the scheme began in 1996, Aeropostale apparently did not discover it until 2006, while undertaking an unrelated forensic investigation.

During the investigation, an e-mail from Mr. Finazzo’s personal attorney was discovered in his work e-mail account.  In the e-mail, Mr. Finazzo’s attorney asked him to review an attached asset list, and confirm the values of various assets for the purposes of creating a will.  Among the assets listed were several companies co-owned with Mr. Dey, including South Bay Apparrel, a  company that served as a primary vendor of Aeropostale merchandise.  Upon learning that Mr. Finazzo had undisclosed ownership interests in companies owned by one of Aeorpostale’s primary vendors, Aeorpostale decided to terminate Mr. Finazzo for cause.

This case came to be decided because Mr. Finazzo was asking the court for an order precluding the government from introducing the e-mail (and anything derived from the email) at trial.  Ultimately, the court denied Mr. Finazzo’s motion.  The court’s decision turned on whether Mr. Finazzo had a reasonable expectation of privacy in his work e-mail account.  Under the facts of this case, the court held that he did not.

In rendering its decision, the court noted that it had before it several versions of Aeropostale’s policies governing its employees’ use of company e-mail dating back as early as 1999.  Although each policy had slight variations, and in some cases even permitted incidental personal use, they all stated that the employee “should have no expectation of privacy when using Company Systems.”  The policies also reserved a right by the company to monitor, access, delete or disclose employees’ e-mails at any time without further permission. Additionally, in each case, Mr. Finazzo also signed receipts, acknowledging that he had read and understood the policies.

At first blush one aspect of this case seems unfair to Mr. Finazzo.  How could the court hold that he waived his privilege with respect to the contents of this communication from his attorney when he was the recipient of the e-mail, not the sender?  This is because Mr. Finazzo has not–indeed he could not–allege that his attorney looked up his Aeropostale e-mail address and unilaterally sent him confidential information.  “Rather, Finazzo chose to communicate with his lawyer through a medium in which he had no expectation of privacy, thus inviting responses via that same medium.”

Mr. Finazzo also did not simply delete the allegedly confidential e-mail.  He admitted that after he received it, he forwarded it to his personal, non-Aeropostale e-mail account before he deleted it.  Thus, after he received the e-mail and recognized it as confidential, “he then turned around and sent it back through Aeropostale’s e-mail servers to another account. ”  In so doing, he allowed Aeropostale another opportunity to see the e-mail.  Thus, according to the court, “even if Finazzo were correct that his ‘mere receipt’ creates some legally cognizable distinction, such would be unsupported by his own record.”  Mr. Finazzo both sent and received the privileged e-mail.

This is not the first time a court has held that an otherwise privileged e-mail communication loses its protection because it was sent from a work e-mail account.  But, it serves as an important reminder.  Every day, many of use our work e-mail accounts to send and receive personal messages.  While workplaces have become increasingly willing to permit some incidental personal use, one must always be mindful of the nature of the communication.  If the communication conveys confidential or other information that should not be widely disclosed, think twice before hitting “send.”

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