Siding with Peerenboom, the court considered a number of factors in deciding whether privilege had been waived, including: (1) Marvel's email policy banned personal email use; and (2) Marvel monitored the use of the employee email and put all employees on notice that their email was being monitored. The court held that since these policies allowed third parties to access emails between Perlmutter and his attorneys, Perlmutter could not assert the privilege to prevent their discovery.
Waiver of attorney-client privilege may be an extreme result but it demonstrates the importance of transparent email policies. If an employer is going to monitor employee email usage, employees should be made aware of the policy.in a clear and unambiguous manner. In so doing, employers can ensure that employees know that company email is for company business only.