The extent to which an employer may access an employee’s personal e-mail account is an unsettled issue. Many employers have policies in place that either prohibit or significantly limit an employee from accessing personal e-mail during work hours. Most employers have (or, if not, should have) a right-to-monitor policy, which notifies employees that the employer may actually monitor access to personal e-mail accounts if the employee is using company equipment. A recent decision from a federal court in Florida supports the employer’s position that it can compel an employee to turn over e-mail from a personal account.
(pdf), a breach of employment agreement and misappropriation of trade secrets case, an employer moved to compel production from the employee’s personal Yahoo! e-mail account. Although the employee claimed he could not produce any e-mails because he presumed they had been destroyed by Yahoo!, the only support for his position was a generic letter from Yahoo! which indicated the account at issue had been deactivated.
Not surprisingly, the court found the employee’s explanation dubious–even more so after the court learned that the employee untimely identified his personal account because, in his opinion, production of e-mails would be “impossible.” According to the employer, the employee used this specific personal account to engage in the activities upon which the entire lawsuit was based.
Thus, given the potentially high evidentiary value of the e-mails, the court sanctioned the employee (although any potential fine is dependent upon how successful the employee is in his court-ordered attempt to obtain the e-mail from Yahoo!). The court further cautioned that if it turns out the employee’s failure to identify his personal e-mail account and obtain messages from his account results in the spoliation of evidence, the court will consider serious penalties.