The WeWork Decision And Its Implications For Director Email Accounts

I. Introduction

A recent Delaware court decision, In re WeWork Litigation, put a spotlight on the risk of corporate employees and directors destroying privilege by communicating through email. Questions about the security and confidentiality of electronic communications have been around for a long time. But at least under Delaware law, the WeWork decision expanded the applicability of a test that was originally intended for evaluating privilege in the context of employer-employee disputes where the employee uses a work email address for communicating with his or her personal attorney. WeWork applied the test and held that privilege was destroyed where two employees of Sprint, a company then 84% owned by SoftBank Group Corp. (SoftBank), exchanged emails about The We Company (WeWork), which was another company in which SoftBank had a significant investment, using their Sprint email accounts. This broader application of the test has implications for whether companies