Recent headlines have highlighted the blurring divide between professional and private e-mail accounts: The White House and its staffers were subjected to criticism and scrutiny for their use of non-governmental e-mail accounts and BlackBerrys in connection with official business; New York Governor Eliot Spitzer's aides' personal e-mail accounts have been targeted for communications concerning the investigation into the Senate majority leader; and New Jersey Governor Jon Corzine recently declared that he would stop using e-mail entirely in response to legal requests for private e-mails between the governor and his ex-girlfriend.
The overlap between business and personal e-mail and computer use isn't limited to the political arena. An April 2007 survey revealed that 33 percent of employees use personal e-mail accounts at least once or twice weekly for business purposes, and that 17 percent do so daily. [FOOTNOTE 1] Moreover, nearly 16 percent of the survey participants admitted to using their personal e-mail accounts to avoid corporate review or retention of their messages. [FOOTNOTE 2]
As these results indicate, courts and attorneys are likely to face an increasing number of requests for access not only to an employee's business e-mail, but also to any business-related e-mail that may be found in the employee's personal e-mail or stored on the employee's home computer. This reality can raise privacy concerns and questions about whether a subpoena or document demand to a company should be read to reach the personal e-mail accounts of the company's employees.
Federal Rule of Civil Procedure 26(b)(1) allows discovery of any matter relevant to the claims of a party as long as the discovery "appears reasonably calculated to lead to the discovery of admissible evidence," while the recently modified FRCP Rule 34(a) allows a party "to inspect, copy, test or sample any ... electronically stored information." Nonetheless, the Advisory Committee for Rule 34(a) anticipated that in our current electronic age, such discovery "may raise issues of confidentiality or privacy." [FOOTNOTE 3] Thus, Rule 34(a) doesn't entitle a party to "a routine right of direct access to a party's electronic information system, although such access might be justified in some circumstances." [FOOTNOTE 4] As a result, courts have been hesitant to allow wholesale access to a parties' personal electronic information.
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By H. Christopher Boehning and Daniel J. Toal