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Civil Litigation

The same kind of continuing, unintended communication can happen when an employee is terminated and hands in an employer-issued (and owned) smartphone or tablet. If the employee arranged for the device to receive private web-based email, such as Gmail, over the company’s network, and if the employee did not take steps to disable access to that account at the time of separation, the emails will still show up on the device. In that case, the employer may choose to read the ex-employee’s private email on the handed–in device, without the former employee ever knowing.1

But what can a litigant or lawyer do with any of these overseen or overheard communications? Can the eavesdropper keep monitoring surreptitiously those communications? What if the snooping party brings the device to his lawyer’s office? Can the attorney or a staff member record the leaking private text messages or emails and use them as evidence? Does the lawyer have ethical responsibilities to avoid exploiting this accidental eavesdropping? What if a lawyer or investigator poses as a third party and communicates with the cheating spouse (or fired employee) to extract admissions? What if the lawyer sees the former spouse or employee sending a text message or email to his or her lawyer? Does that waive the privilege?