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Reviewing employees’ email | Lexology

May 11, 2010 By Leave a Comment

Quirky Question # 144:

I’m confused. I thought we could review our employee’s email communications when sent out on our company’s equipment. Our electronic communications policy states clearly that we reserve the right to do so.

I also thought we could review even privileged communications between our soon-to-be ex-employee and his attorney, if these communications were sent on our email system. I’m now being advised that we cannot do so. Can you offer any guidance?

My Analysis:

Your question illustrates the ongoing legal evolution in areas where advancing technology intersects employment law or affects other facets of legal analyses – here, the attorney-client privilege. Like technology itself, the law is developing and changing quickly in areas affected by technological advancements.

With respect to the issue of whether a company may review email communications of its employees, including even email communications between your employee and his/her outside counsel, I have written on this subject twice before. Happily, I am pleased to report that the advice I gave two years ago has been validated and reinforced by a recent decision from the Supreme Court of New Jersey.

The “confusion” you may be experiencing regarding this issue likely reflects the fact that this continues to be an area of the law where courts are providing mixed messages to litigants and their lawyers alike. Unsurprisingly, not all judicial decisions have adopted a uniform approach to the question of whether email communications to counsel, when sent on a company’s communications systems or computers, are protected by the attorney-client privilege.

One case that has received considerable recent attention and commentary is Stengart v. Loving Care Agency, Inc., et al., decided by the Supreme Court of New Jersey on March 30, 2010. Stengart is a thoughtful opinion and highlights many of the issues that you should consider in evaluating your unique fact pattern.

via Lexology – Reviewing employees’ email.

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One of the Nation’s Leading Legal Minds: The President Nominates Elena Kagan for the Supreme Court’ | The White House

May 10, 2010 By Leave a Comment
Harvard law school dean Elena Kagan
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The President has always viewed nominating new Justices to the Supreme Court as one of his most important responsibilities, and his nomination of Solicitor General Elena Kagan reflects the results of a careful and thorough search across America’s exceptional pool of legal talent.

Widely regarded as one of the nation’s leading legal minds, Solicitor General Elena Kagan has forged a path-breaking career in the law and in government service, distinguishing herself throughout by her penetrating intellect, unwavering integrity, sound judgment and prodigious work ethic.  Her family taught her the value not just of education, but of service, and instilled in her an understanding of how the law affects the lives of working Americans.

She was the first woman to serve as Dean in Harvard Law School’s 186-year old history. And she was the first woman to serve as Solicitor General – the lawyer who represents the United States Government before the Supreme Court. Of the 111 justices who have served on the Supreme Court, only three have been women. Kagan would be the fourth, and this Fall, for the first time in history, three women would take their seats on our nation’s highest court.

As an academic, her scholarship focused on issues ranging from freedom of speech to government policy making – issues with a profound effect on our daily lives. As a White House lawyer and policy aide, she played lead role in working with Democrats and Republicans on legislation to prevent tobacco companies from targeting children with deceptive advertising practices and addictive products. As a law school Dean, she turned a fractious institution into a united one, and inspired students to use their legal training to serve their communities. And as Solicitor General, she has defended before the Supreme Court Congress’s efforts to protect shareholders’ rights, to implement bipartisan campaign finance reform, and to preserve the national security interests of the United States.

With an unparalleled ability to bring together people of different backgrounds and beliefs, she has earned praise across the political spectrum for her fair-mindedness, even-handedness, and insistence that all views deserve a respectful hearing. Every Solicitor General over the last quarter century – Democrats and Republicans – wrote a letter of support for her nomination as Solicitor General, noting her “brilliant intellect,” “candor,” and the “high regard in which she is held by persons of a wide variety of political and social views.” And her nomination to the Supreme Court is receiving similarly wide support from members of the legal community across the ideological spectrum.

via One of the Nation’s Leading Legal Minds: The President Nominates Elena Kagan for the Supreme Court’ | The White House.

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SCOTUS: Kagan Is the One, NBC News Reports | National Law Journal

May 10, 2010 By Leave a Comment
Harvard law school dean Elena Kagan
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NBC News confirmed Sunday night and is reporting that President Barack Obama plans to nominate Solicitor General Elena Kagan to replace retiring Supreme Court Justice John Paul Stevens.

Obama is expected to announce his choice at the White House with Kagan at his side Monday morning, with the goal of Senate confirmation hearings before the end of June.

Obama appears to be aiming for a relatively easy confirmation process by picking the 50-year-old Kagan, who won support from Republicans like Sen. Orrin Hatch of Utah and John Kyl of Arizona in the 61-31 vote to confirm her for her current post 14 months ago. But with the higher stakes involved in a Supreme Court nomination, and party animosities intensifying as the 2010 elections approach, Kagan is unlikely to win as many votes this time around. (For a National Law Journal interview with Kagan last year, go to this link.)

Kagan, a former Harvard Law School dean who also taught at the University of Chicago, served in the Clinton White House and as a special counsel for the Senate Judiciary Committee, and in 1999 was nominated to a judgeship on the U.S. Court of Appeals for the D.C. Circuit. Her nomination never received a hearing or a vote. At the beginning of her career after graduating from Harvard Law School, Kagan clerked for appeals Judge Abner Mikva and Justice Thurgood Marshall, then worked as an associate at Williams & Connolly in Washington.

With a relatively short paper trail on controversial legal issues, Kagan has won praise and criticism from both the right and the left. Other candidates like Judge Diane Wood of the 7th U.S. Circuit Court of Appeals might have had a harder time winning confirmation because of their documented stances on issues such as abortion.

If confirmed, Kagan will be the first new justice without prior judicial experience since Lewis Powell Jr. and William Rehnquist joined the Court in 1972. By joining Justices Ruth Bader Ginsburg and Sonia Sotomayor on the Court, her ascendancy would mark the first time in the Court’s history that three women serve on the Court simultaneously.

via Law.com – Kagan Is the One, NBC News Reports.

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