Private EMails of Employees may no longer be so

A friend recently provided me with the link to a very interesting article pointing out that in some situations employers with employees who not only use their business accounts but also personal accounts to deal with business matters may subject not only the business email accounts but also personal accounts to discovery and review in litigation.   Writing in the  New York Law Journal, Christopher Boehning and Daniel Toal discuss in some detail their research in:  Caution: Private E-Mails Might Turn Public.

The Federal Rules of Civil Procedure [and many state rules] require people and businesses receiving a subpoena or request to produce documents to locate and produce all responsive documents in its "possession, custody or control".  FRCP 26(b), 34(a).  When an employee uses his or her personal account to conduct business, whether it's because they're off on vacation or finishing up loose ends at home, that not only obligates the employer and the employee to respond with relevant business emails but also, sometimes, with access to personal email accounts as well.  As the authors note this blurring has occurred in the political realm as well: 

"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."

So, the caution for both employers and employees is to be prepared to preserve and provide not only business email accounts and information but also personal accounts where there has been a co-mingling.  Given the ubiquitous use of email these days for business communication not matter where one is, it's a safe bet that some co-mingling has occurred and legitimate discovery requests will have to be met with full disclosure.