Can I rely on an employee’s personal emails in Court if they were left on a work computer?
Here is an example scenario: you realise that an employee has been misappropriating money from your company over the last year. You confront the employee about the misappropriation, they deny all wrongdoing, and subsequently resign. As part of the resignation process, the employee returns their work laptop and says that they have already deleted any personal information. You hand the laptop over to your IT team for review and resetting, but in the process you are notified that the employee failed to delete all of their personal emails before handover. You now want to bring a claim against the employee for the misappropriated funds, can you rely on the contents of any of the employee’s personal emails that were found by your IT team?
The answer is not straightforward and depends greatly on what the employee’s emails contain. For this example, we will consider two example emails: 1) a ‘smoking gun’ email between the employee and an outside Third Party; and 2) an email between the employee and their solicitor about the allegations, their resignation, and potential civil litigation.
1. A ‘Smoking Gun’ email between the employee and an outside third party
In the first instance, you would broadly be allowed to rely on an email to an outside Third Party in which the employee admits to misappropriating the funds. The email has been freely, if inadvertently, given to you and contains information that would support your case. Provided that there were no further issues with the email, it is possible that you could include the email as an exhibit to pleadings or witness statements.
Moreover, during litigation, the parties are under an obligation to provide each other with a list of all documents which are, or have been, in their control and which help or hinder the case of any party. The hypothetical ‘smoking gun’ employee email in our scenario would almost certainly fall within this category and would have to form part of the disclosure, whether you, the employee, or both of you were to disclose it.
Note, however, that this obligation cuts both ways. If there was an email on the returned laptop that cast doubt on the idea the employee misappropriated the funds, then you would be under the same obligation to disclose that email as the ‘smoking gun’ email. Failing to disclose documents can lead to court sanctions and potentially adverse inferences that could undermine and damage your case.
2. An email between the employee and their solicitor about allegations and potential litigation
This is the most complex and difficult circumstance to consider, as it brings into focus the question of privileged documents.
Generally, confidential communications between a solicitor and their client are subject to either legal advice privilege, litigation privilege, or both. However, if those communications are shared with a third party, then the confidentiality may be lost against that party. Once a party demonstrates to the Court that a document is privileged, that document would be absolutely excluded from disclosure and cannot be relied upon without the permission of that party. This can, however, be a very contentious and challenging process that is highly fact-specific.
Conveniently for our scenario, however, the Court recently considered a similar set of circumstances in Taylor v Evans  EWHC 935 (KB). In Taylor, one of the parties sought a declaration that an email between its employee and the employee’s personal solicitor was not privileged because it had been found on a work laptop handed over to the party. The Court applied the relevant tests, as summarised by Simon Salzedo KC, sitting as Deputy High Court Judge in the earlier case of Jinxin Inc v Aser Media PTE Ltd & Ors  EWHC 2431 (Comm), and ruled that the circumstances of the email’s discovery “were not such as to destroy its confidentiality” as against the party. Consequently, the Court refused to make the declaration and the email remained privileged.
So, in our situation, provided it is appropriately comparable to Taylor, it would seem in the first instance that you could not rely on the employee’s email to their solicitor, as legal professional privilege was not waived when the employee inadvertently provided you with the copy on their work laptop.
Having said that, much would still turn on the exact contents of the email. There is an exemption to privilege that arises in relation to documents that were brought into existence for the purpose of furthering a criminal or fraudulent purpose. This exemption may apply if, for example, the employee had been colluding with their solicitor to misappropriate your funds and the email spoke to that fact, or potentially even if the solicitor was unaware and the employee was using them to provide evidence in support of a fabricated defence or alibi (as occurred in Hallinan, Blackburn-Gittings & Nott (a firm), R (on the application of) v Middlesex Guildhall & Anor  EWHC 2726 (Admin)).
The overall answers in our example scenario, as one can see from the above discussion, is far from clear cut. Whether you can rely on personal emails accidentally left on a work laptop depends greatly on the contents of those emails, who the emails were between, and whether those emails are privileged.
It is also important to bear in mind that the question of whether it is lawful to access or use personal emails is entirely separate to the question of whether they are admissible or disclosable once obtained. Accessing personal emails may give rise to a standalone claim (or counterclaim) for the misuse of private information or breach of data protection legislation, even if emails are deemed to be admissible. The question of lawfulness will always be fact-sensitive.
If you are the victim of civil fraud, trying to recover misappropriated funds, concerned about accessing emails or the extent of your disclosure obligations, you should always seek specialist legal advice.
If you require advice and/or representation in respect of civil proceedings, contact our civil litigation solicitors by sending us an email, completing our online enquiry form or calling on 020 3813 5366
Articles are intended as an introduction to the topic and do not constitute legal advice.