E.D.Pa.: Fourth Amendment and a public employee’s work e-mail

In a Title VII case, plaintiff claimed the defendant school district violated her Fourth Amendment rights by looking at e-mails on the school district’s computers. It wasn’t her computer and she signed off on a technology policy that she didn’t own anything on the computer system. Dombrowski v. Governor Mifflin Sch. Dist., 2012 U.S. Dist. LEXIS 90674 (E.D. Pa. June 29, 2012):

Plaintiff claims that GMSD violated her right to privacy when (1) it ordered an outside forensic investigator to search Plaintiff’s work computer (which Plaintiff had turned over when she was suspended); (2) the forensic investigator produced Plaintiff’s personal e-mails (including e-mails between Plaintiff and her attorney) which were found on her computer and a network server; and (3) it introduced many of the produced e-mails into evidence during Plaintiff’s Loudermill and public School Board hearings. The Court must consider whether Plaintiff has a reasonable expectation of privacy in e-mails (including e-mails between Plaintiff and her counsel) that could be accessed by the forensic investigator solely by searching property owned by GMSD.

Courts have considered the confidentiality of e-mails and documents sent from work computers, including e-mails between attorneys and clients. In re Asia Global Crossing,
Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005), cogently sets forth four critical factors that a court should consider with respect to an employee’s expectation of privacy in computer files and e-mail:

(1) [D]oes the corporation maintain a policy banning personal or other objectionable use,
(2) does the company monitor the use of the employee’s computer or e-mail,
(3) do third parties have a right of access to the computer or e-mails, and
(4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?

Id. at 257 (footnote omitted); see also United States v. Nagle, No. 1:09-CR-384, 2010 WL 3896200, at *4 (M.D. Pa. Sept. 30, 2010). The Asia Global court then discussed numerous
federal cases from which these factors were derived. Asia Global, 322 B.R. at 257-58. The conclusion often turned on whether there was a company policy respecting the privacy of work computers; whether the employee was aware of the policy; and whether the company actually implemented its policy. Id. (describing collected cases).