Skadden’s “Law Governing Attorney-Client Privilege for Emails Hosted on Noncompany Servers Continues To Evolve in Delaware” summarizes relevant case law and associated “expectation of privacy” frameworks regarding the maintenance of the attorney-client privilege in conjunction with director and employee email communications, and provides practical guidance to companies to mitigate the potential for an inadvertent waiver. We recently reported on one of these cases (In re WeWork Litigation) here.Directors in particular are encouraged to use company-provided emails accounts or other third party-hosted unmonitored accounts or board portals. Employees similarly are advised to use company-provided email or other third party-hosted unmonitored accounts. Absent these alternatives, companies should seek to maximize protections associated with their current policies governing external email accounts.
See our prior reports: “Board Communications Best Practices”; "Benchmarking Director Communication Practices," "Director Communications: Security & Privacy Considerations," and "Confidential Board/Director Communication Practices"; and additional resources on our Board/Director Communications and Board Portals pages. This post first appeared in the weekly Society Alert!