Delaware Case Highlights Potential to Misuse Employer Work Emails

A recent blog post by Kirkland & Ellis lawyers on the WeWork litigation cautions directors on using work email accounts to send sensitive documents such as board materials. The court in the WeWork case found that insiders, who had dual roles at separate companies, may have jeopardized attorney-client privilege that could have been asserted on certain documents when those insiders used their e-mail accounts linked to employers that were not part of the litigation. The lawyers write that the court decision is an important reminder that, “outside directors may want to avoid using their work email accounts (i.e., of their primary employer) to send or receive board materials that otherwise may be privileged. Despite the convenience of doing so, many employers have email use policies that could cause privilege issues…”  The lawyers advise that “it may be preferable to utilize confidential board portals, to use personal email accounts (even better if they are “special purpose” personal accounts used only for the specific role), or to arrange for director email accounts to be set up by the company where they serve.”