New York State Court Holds That Attorney-Client Communications Stored on Employer's E-mail Server Not Protected by A/C Privilege

Per Scott v. Beth Israel Medical Center Inc. --- N.Y.S.2d ----, 2007 WL 3053351 (N.Y.Sup.
Oct. 17, 2007):

Plaintiff Dr. Scott moves . . . for a protective order requiring defendants Beth Israel Medical Center and Continuum Health Partners Inc. (collectively “BI”) to return to plaintiff all e-mail correspondence between plaintiff and his attorney. . . .

On August 10, 2005, BI's counsel, Marvin Wexler of Kornstein Veisz Wexler & Pollard, LLP (“KVW”), sent a letter to plaintiff's counsel, Stuart Kagen of Paul, Weiss Rifkind Wharton & Garrison LLP (“PW”), asserting that BI was in possession of e-mail correspondence between Dr. Scott and PW pertaining to Dr. Scott's dispute with BI, as well as e-mails written between Dr. Scott and Cohen Lans LLP regarding a separate dispute. . . .

. . .

Dr. Scott argues that the e-mails are privileged under both the attorney client privilege and work product doctrine. BI counters that the e-mails were never protected by the attorney client privilege because Dr. Scott could not have made the communication in confidence when using BI's e-mail system in violation of BI's e-mail policy. BI also argues that both privileges were waived by Dr. Scott's use of BI's e-mail system.

. . .

The Court rejects Dr. Scott's argument . . . and holds that BI's e-mail policy is critical to the outcome here. . . . A “no personal use” policy combined with a policy allowing for employer monitoring and the employee's knowledge of these two policies diminishes any expectation of confidentiality. . . .

As there is no New York case on point to determine whether the communication here was made in confidence or not, we look for guidance to In Re Asia Global Crossing, which is a federal bankruptcy case virtually identical to this case and a case upon which both parties rely. In re Asia Global Crossing, Ltd., 322 B.R. 247 (S.D.N.Y.2005). In Asia Global, executives used their employer's e-mail system to communicate with their personal attorney concerning actual or potential litigation with the employer, the owner of the e-mail system. 322 B.R. at 256. The issue in the case was identical to the issue here. Id. at 251. The Court looked at a variety of federal cases which addressed whether an employee had a reasonable expectation of privacy in his or her office e-mail, but where attorney client privilege was not an issue. 322 B.R. at 257-258. The Asia Global Court concluded that, the attorney-client privilege would be inapplicable if “(a) ... the corporation maintain[s] a policy banning personal or other objectionable use, (b) ... the company monitor[s] the use of the employee's computer or email, (c) ... third parties have a right of access to the computer or emails, and (d) ... the corporation notif[ies] the employee, or was the employee aware, of the use and monitoring policies?” 322 B.R. at 257.

[The court found three of the four requirements satisfied, with the third requirement being irrelevant].