Dan Michaluk writes:
I made a half-baked comment in response to Omar’s April 4th post on the procedural issues in dealing with the communications that employees have with their legal counsel through employer e-mail systems. This is a post based on some “more baked” thoughts that I plan to incorporate into a book chapter under development.
The thoughts I’ve included are strictly on the procedure for dealing with these “hot” e-mails. I’ll leave the substantive issue about the legitimacy of an employee privilege claim to another day, but will set up the thoughts below by noting that the issue is highly uncertain in Canadian law. The early case law seems to demonstrate a privilege-protective approach. In my view, however, it is still open to an employer to attack an employee privilege claim based on proof of the domain it exercises over its computer system, and that the strongest basis for attack is one which challenges the confidentiality on which the privilege claim is founded rather than one which relies on the doctrine of waiver. Employers may very well choose to attack, but can’t do so without thinking through the important duties described below.
This is pretty law-heavy for here, but I figure that this issue is Slaw-worthy and might draw debate. I welcome your critique!
Read his article on Slaw.