Tim Wybitul, who is Of Counsel at Hogan Lovells in Frankfurt, provides an analysis of two recent German cases lessening the restrictions on employers monitoring and examining employee e-mail. This development in the law has an impact on e-discovery and internal investigations.
Employers have a right, and in some cases a duty, to monitor the e-mail communications of their employees that are sent from the employer’s e-mail system. As a general matter, employees have no expectation of privacy in e-mails sent through their workplace system. Since employees who communicate with their personal lawyers through their employer’s e-mail are subject to employer monitoring, the American Bar Association has issued a formal ethics opinion stating that lawyers have a duty to warn such employees that their e-mails may not be confidential.
The U.S. Court of Appeals for the Ninth Circuit held on August 6, 2009 that standing for private plaintiffs under the CAN-SPAM Act is limited. Judge Richard Tallman, who authored the court’s opinion in Gordon v. Virtumundo, Inc., No. 07-35487 (Aug. 6, 2009, 9th Cir.), noted that this was the first case in which the […]