Confidentiality in the Age of E-Mail

Traditionally, the attorney-client privilege has protected most confidential communications between an attorney and client from disclosure during litigation. As in other areas of the law, however, the proliferation of e-mail as a means of communication raises unique issues with respect to the availability and scope of the attorney-client privilege. Should attorney-client communications be considered “confidential” when they occur over the company’s e-mail systems? Do employees have a reasonable expectation of privacy for such communications? Can companies preemptively limit the availability of the privilege through disclosures regarding the non-confidential nature of e-mails sent over company servers? What effect does the ability to retrieve old communications through forensic data recovery have on the availability of the privilege? What should attorneys tell their clients about e-mail communications in order to preserve the ability to claim the attorney-client privilege, if necessary, in litigation?