The BP oil spill litigation has provided an interesting decision concerning the affect an employer's e-mail policy has on the spousal privilege (and arguably the attorney/client, doctor patient, and religious privilege claims). Communications between an employee and his spouse, also a BP employee, were made through BP e-mail accounts. The employee argued BP permitted personal use of the accounts, third parties could not access the accounts, and the employers notifications (that e-mail was not private) were not sufficient to overcome spousal privilege. Rejecting the employee's argument, the court found, the accounts were not private, they could be monitored by the employer, and they could be subpoenaed. Of course this latter assessment begs the question of privilege.

In this information age, employers need to guard their secrets and proprietary information. Many employers think having an "off the shelf" internet and computer use policy is all they need. Far too often employers fail to consider the more serious problem of data theft, unfair competition and the machinations of disloyal employees. Non-compete and confidentiality agreements are one further step in the right direction, and clear policies about non-distribution of stored electronic data. And don't forget the requirements of e-discovery. Most employers are ill prepared for the emerging worst case scenarios. A complete audit of data security issues and systems is in order for most employers not wanting all of their information in the public domain.

The New York State Bar has issued an ethics opinion that accessing the public pages of a social network site to gather information on a litigation opponent is ethical. HAt Tip to the always interesting Adjunct Law Prof Blog.