When Is Privilege Over Email Waived? Canada v. US

The New York County Supreme Court recently held in Perenboom v. Marvel that use of a corporate e-mail server by an employee may constitute a waiver of privilege. In that case, the corporate user policies prohibited personal and objectionable use of its e-mail server; and the Court held that acceptance of these policies constituted waiver. The Court considered various types of privilege claims and found that only spousal privilege may apply because the employee’s spouse was not aware of the corporate policies.

Contrast the Perenboom decision to the recent finding by the Ontario Superior Court of Justice in Narusis v. Bullion Management Group. In a similar (albeit not identical) situation, the Court clearly distinguished between an employee’s general right to privacy and the protection of privileged communications sent via an employer’s e-mail server. The Ontario Court highlighted that privilege is distinct from privacy and thus afforded a different protection in accordance with the principles of the administration of justice.

While the Perenboom decision may survive an appeal in the US, we don’t think this line of reasoning would hold water in Canada.  In fact, the Court in Narusis underscored the difference between the law of privilege in Canada and the US; the Court stated that in the US “privilege [is] a rule of evidence” and “is not without conditions”, whereas in Canada it is a “fundamental principle that our law recognizes”.

​Both cases demonstrate that as e-mail and other corporate communication tools become more pervasive, it is important to understand the complexities associated with their use, and craft policies accordingly. Even with such policies in place, while employees may relinquish some, if not all of their privacy rights by accepting them, privilege will continue to be “as close to absolute as possible” – at least in Canada.