Corresponding by email has, in many situations, become our default method of communicating. The ease and efficiency of email often trumps consideration of the vehicle used for such communications.
Beware: There is no categorical expectation of privacy when using business email for non-business purposes.
Thus, using business email for private matters may expose your business accounts to a subpoena and search. And, in some cases, such use may also waive the attorney-client or other privileges.
Complicated and expensive litigation often ensues:
In re Asia Global Crossing, Ltd., 322 B.R. 247 (Bk. Ct. S.D. N.Y. March 21, 2005)
The Bankruptcy Court summarized the issues before the Court:
E-mails are a widespread method of communication, and employees sometimes use the employer’s e-mail system to communicate with third parties about personal matters. The main question raised by the current motion is whether an employee’s use of the company e-mail system to communicate with his personal attorney destroys the attorney-client, work product or joint defense privileges in the e-mails where the employee and his former employer’s trustee have become adversaries.
Assuming a communication is otherwise privileged, the use of the company’s e-mail system does not, without more, destroy the privilege. Furthermore, except for the Troxell Documents described below, the disputed or incomplete factual record prevents the Court from deciding as a matter of law that a waiver of any privileges occurred.
Following his appointment, the Trustee began an investigation into certain transactions involving the Insiders. After obtaining orders pursuant to Federal Rule of Bankruptcy Procedure 2004…the Trustee caused subpoenas duces tecum to be served in July 2004 on the Insiders [five individuals] Janet Troxell. Troxell had done human resources and payroll work for Asia Global, first as an employee, and after March 2002, as a “consultant.”…Each of the 2004 Orders and corresponding subpoenas duces tecum called for the production of all documents that relate to the Debtors’ acts, conduct, property, liabilities and/or financial condition of the Debtors and/or any other matters which may affect the administration of the Debtors’ estates, including, without limitation, all correspondence, memoranda, and all other documents, electronic records, and other media.
Troxell produced certain documents in response to the subpoena. However, she withheld twenty pages (the “Troxell Documents”) at the Insiders’ request on the grounds that the Troxell Documents were covered by the attorney-client and work product privileges[.]
The Insiders apparently did not comply with the July 2004 subpoenas; in any event, they failed to produce the Insider E-mails and Hard Copy Documents that had been segregated and remained confidential. As a result, the Trustee issued a second set of subpoenas on October 15, 2004. These subpoenas specifically called for the production of any electronic documents generated or received on Asia Global computer systems, and any hard copy documents located at the Asia Global offices at the time of conversion to chapter 7. The second set of subpoenas was also served on counsel rather than personally on the Insiders. The Insiders again refused to produce the documents, contending, inter alia, that they were covered by the attorney-client, work product and joint defense privileges[.]
The pending motion and the Trustee’s contentions:
As a result, the Trustee moved to compel production of the withheld documents. He contends that the use of the corporate e-mail system waived any privileges that otherwise existed. According to the Trustee, Asia Global maintained a corporate policy that warned e-mail users that the emails were the debtor’s property, the email system was not secure, that third parties had access to the e-mail system, and that no one was authorized to use the e-mail system to transmit confidential or secret information. During oral argument, the Trustee expanded his contention, asserting that even without the e-mail policy, the mere use of the company’s e-mail system destroyed or waived any privilege. In response, the Insiders emphatically deny the existence of any e-mail policy regarding use or monitoring, or that they were ever advised of such a policy.
The Trustee devotes little attention to the Hard Copy Documents. He simply states that “[s]imilar principles [as those that purportedly eliminated any privilege in the Insider E-mails] render unprivileged any hard copies of communications between the Insiders and their counsel that were maintained at [Asia Global’s] offices and abandoned there by the Insiders after they left the company…The Trustee made no separate argument regarding the Hard Copy Documents.
Finally, the Trustee contends that the Insiders waived any privilege in the Troxell Documents for the reason that they were sent to Troxell, a third party. The Insiders’ disagree, asserting that they merely passed on their counsel’s otherwise privileged request for information, and the communication remains privileged. Troxell, they maintain, was a business associate of the Insiders, and they needed her help in getting information necessary for the provision of legal services[.]
The threshold assumption as to privilege:
The Trustee’s motion impliedly assumes that the documents at issue are otherwise privileged. Instead, he focuses, respectively, on the use of the Asia Global e-mail system, the arguable abandonment of the Hard Copy Documents and the dissemination of the Troxell Documents, and maintains that any privileges have been destroyed. Accordingly, the Court will also assume for the purpose of the instant dispute that the documents are otherwise privileged, but recognizes that this may be disputed in later proceedings.
The use of email:
The main gist of the current dispute concerns the confidentiality of e-mail communications. Although e-mail communication, like any other form of communication, carries the risk of unauthorized disclosure, the prevailing view is that lawyers and clients may communicate confidential information through unencrypted e-mail with a reasonable expectation of confidentiality and privacy[.]
Consistent with this trend, New York and California have enacted laws that provide some protection to e-mail communications. New York C.P.L.R. § 4548…states that a privileged communication does not lose its privileged character for the sole reason that it was sent by e-mail or because persons necessary for the delivery or facilitation of the e-mail may have access to its content…Accordingly, while disagreement exists…the transmission of a privileged communication through unencrypted e-mail does not, without more, destroy the privilege.
Asia Global maintained its own e-mail system, and the Insider E-mails were sent over that system. Ordinarily, e-mail communications between agents of a corporation regarding the corporation’s business are protected from disclosure to third parties outside the corporation. It is reasonable in those circumstances for the sender to assume that the recipient will hold the communication in confidence[.]
The present case, however, does not involve e-mails between corporate agents involving company business. The Insiders used the debtor’s e-mail system to communicate with their personal attorney, and the communications apparently concerned actual or potential disputes with the debtor, the owner of the e-mail system. The Court’s own research has not located any decisions that discuss the confidentiality of the employee’s e-mails in terms of the attorney-client privilege[.]
The expectation of privacy in the workplace:
An employee’s expectation of privacy in his office, desk and files “may be reduced by virtue of actual office practices and procedures, or by legitimate regulation.”…In light of the variety of work environments, whether the employee has a reasonable expectation of privacy must be decided on a case-by-case basis.
And with respect to email:
The same considerations have been adapted to measure the employee’s expectation of privacy in his computer files and e-mail. In general, a court should consider four factors: (1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee’s computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?
[T]he Court assumes that the Insider E-mails are otherwise privileged, and further, that the Insiders subjectively intended that they be confidential. Thus, the question of privilege comes down to whether the intent to communicate in confidence was objectively reasonable. There is a close correlation between the objectively reasonable expectation of privacy and the objective reasonableness of the intent that a communication between a lawyer and a client was given in confidence. Accordingly, the objective reasonableness of that intent will depend on the company’s e-mail policies regarding use and monitoring, its access to the e-mail system, and the notice provided to the employees.
The question of access is addressed first because it is the easiest. Asia Global clearly had access to its own servers and any other part of the system where e-mail messages were stored; otherwise, the Trustee, the debtor’s successor, could not have acquired the e-mail communications that the Insiders want to protect. E-mail systems, in this regard, are different from office computers or hard copy files. Asia Global did not require access to the Insiders’ offices or their office computers to read their e-mails. In truth, sending a message over the debtor’s e-mail system was like placing a copy of that message in the company files. Short of encryption, the Insider E-mails could be reviewed and read by anyone with lawful access to the system.
- Limitations on Use and the Intent to Monitor
The evidence is equivocal regarding the existence or notice of corporate policies banning certain uses or monitoring employee e-mails. Charles Carroll, the debtor’s former general counsel, emphatically stated that Asia Global did not enact or enforce a policy that e-mails on the company server belonged to the company, and he never told anyone that Asia Global had such a policy…He understood that company policy permitted personal use of the e-mail system…he never told employees that their e-mails would be monitored, and he did not monitor any employee’s e-mail…Each of the Insiders submitted nearly identical declarations containing similar statements[.]
The Trustee disputes these assertions, and has identified two e-mail policies that, he argues, directly contradict them. First, according to a document entitled “Corporate E-mail Policy,”
The Corporate E-mail systems, and ALL data and information transmitted through [the Corporate E-mail systems] are owned and operated by the Corporation for the sole purpose of conducting the Corporation’s business.
Incidental and occasional personal use of E-mail is permitted, but such messages are property of the Corporation, and are treated no differently than any other message.
…Communications on the Corporate E-mail systems are not private or secure. Persons with legitimate business purposes have access to all communications on those systems and there is a risk that E-mail communications may be accessible to unauthorized users outside the Corporation. No employee of the Corporation is authorized to utilize the E-mail systems for the transmission of confidential or secret information. (Emphasis added.)
Second, a Messaging Policy states:
…Authorized users shall access messaging systems solely for the purposes of conducting the Corporation’s business, or for other appropriate activities authorized by management. The Corporation… reserves the right … to [e]ngage in random or scheduled monitoring of business communications…. Privacy of these messaging systems is not guaranteed, nor implied. It is the responsibility of every authorized user to be aware of, and comply with, all corporate policy and guidelines while using messaging systems. All data and content on these messaging systems is the property of the Company. No content on these messaging systems shall be withheld from the Company’s authorized security personnel or others specifically authorized by the chief executive officer of the Company. (Emphasis added.)
Read together, the two corporate statements clearly set forth a policy banning personal use of the e-mail messaging system, and authorizing access and monitoring. Furthermore, the policies warn that the messages belong to the corporation, and privacy “is not guaranteed, nor implied.”
None of the policies mentions Asia Global by name. The Trustee nevertheless attributes them to the debtor based on a memorandum, dated February 28, 2002, from Carroll to Lod Cook…The subject of the memorandum is “Asia Global Crossing Mail Security.” It was apparently written in response to a prior report by John LoBianco which stated that John Legere, the onetime chief executive officer of both Global Crossing and Asia Global Crossing, had accessed and read e-mails in the mailboxes of several high level Asia Global officers, including several of the Insiders.
The thrust of Carroll’s memorandum was that Asia Global did not have a policy that allowed the chief executive officer full access to employee e-mail to monitor the business. In support of his conclusion, Carroll stated that he had reviewed all published Asia Global Crossing and Global Crossing policies, found no support for any such policy, and attached copies of the policy statements he reviewed. The attachments included the Corporate E-mail Policy, the Messaging Policy, the Ethics Policy and the Global Crossing Acceptable Use Policy.
The memorandum and Carroll’s later declaration are inconsistent on this crucial point. The memorandum plainly implied that Asia Global (as well as Global Crossing) had a “published” policy relating to email use. Furthermore, Carroll stated that he had reviewed and attached the policies to his memorandum. The only policies that he attached were those already mentioned, but the memorandum did not identify which policies belonged to Asia Global and which ones were limited to Global Crossing. He never suggested that he had failed to uncover an Asia Global email policy, or that none existed. In his recent Declaration, however, Carroll stated that the attached policies were Global Crossing’s, not Asia Global’s, and as noted, Asia Global did not have a formal policy in place[.]
The Insiders also insist that they did not know of or tell anyone about an Asia Global e-mail policy. Yet their failure to warn the employees of an existing e-mail policy does not necessarily mean that the employees, including the Insiders, were not on notice of the e-mail policy. For example, at log on, some business computers, including those used by this Court’s personnel, warn users about personal use and the employers’ right to monitor. In some cases, the user actually consents to the limits, or is advised that by continuing to use the system, he will be deemed to have consented to the restrictions. In short, the Court is unable to conclude as a matter of law that the Insiders’ use of Asia Global’s e-mail system to communicate with their personal attorney eliminated any otherwise existing attorney-client privilege.
Long v. Marubeni America Corp., 2006 WL 2998671 (S.D. N.Y. October 19, 2006)
Defendants sought an Order from the Court directing plaintiffs to disclose 25 email messages. Plaintiffs opposed the application on various grounds, including the attorney-client communication privilege.
The Magistrate summarized the facts:
While employed by Marubeni America Corporation…the plaintiffs, Kevin Long…and Ludvic Presto…used MAC computers, that were issued to them to perform their respective work assignments, to send and receive e-mail messages to each other and to their attorney. In doing so, the plaintiffs used private password-protected e-mail accounts. During the time the plaintiffs were employed by MAC, MAC’s Employee Handbook, which Long, in his capacity as senior vice president and general manager, human resources, helped prepare, cautioned its employees that “all communications and information transmitted by, received from, created or stored in [MAC’s automated systems] (whether through word processing programs, database programs, e-mail, the internet or otherwise) are company records” and “MAC’s property.” The Handbook advised MAC employees to use MAC’s automated systems for “job-related purposes,” since “use of the systems for personal purposes are (sic) prohibited.” The Handbook advised further, that MAC had the right to monitor its automated systems and that its employees “have no right of personal privacy in any matter stored in, created, received, or sent over the e-mail, voice mail, word processing, and /or internet systems provided” by MAC.
Unbeknownst to Long and Presto, MAC issued computers had an automatic administrative function that stored temporary internet files in a separate folder that was accessible only to authorized MAC employees. Retained within the folder were residual images of the plaintiffs’ e-mail messages.
The prior proceedings:
In the course of assembling documents for disclosure to the plaintiffs, MAC discovered approximately 3000 temporary internet files on the computers it had assigned to the plaintiffs. These files appeared to contain communications that implicated the attorney-client communication privilege. MAC segregated that material and advised the plaintiffs of its discovery. Thereafter, the Court directed the defendants to permit the plaintiffs to examine the 3000 files so that they might determine whether, in their view, any privileged communications resided in the 3000 files. If, after review, the plaintiffs determined that privileged communications were within the files, they were directed to: (a) prepare a privilege log; and (b) serve that log on the defendants.
The plaintiffs complied with the Court’s directive and produced a privilege log with 25 entries. As noted above, the plaintiffs allege that the 25 items noted in the log may be withheld from disclosure to the defendants because of the attorney-client communication privilege, the work-product doctrine, the joint client doctrine and/or the inadvertent disclosure doctrine.
And defendant’s contention:
For their part, the defendants maintain that: 1) no attorney-client communication privilege attached to 25 items because the plaintiffs had no reasonable expectation of privacy when they used MAC’s computers and internet access to send e-mail messages, in contravention of MAC’s Electronic Communications Policy…as published in the MAC Employee Handbook; 2) the plaintiffs’ e-mail communications with each other are not protected by the work-product doctrine; 3) the inadvertent disclosure doctrine does not apply to the material at issue; and 4) the joint client doctrine was unilaterally waived by Long. To facilitate the resolution of this dispute, the Court reviewed, in camera, the 25 items identified in the privilege log.
The Court found that 15 of the email messages were attorney-client communications continuing that:
Although the Court finds that 15 of the e-mail messages noted in the plaintiffs’ privilege log are attorney-client communications or attorney-client-related communication, as explained above, for the reasons that follow, the Court is not persuaded that the plaintiffs have established that these communications were confidential. Confidentiality is an aspect of a communication that must be shown to exist to bring the communication within the attorney-client communication privilege. When the confidentiality element is not shown to exist, the assertion of the attorney-client privilege to safeguard a communication from disclosure, is improper.
In the instant case, the plaintiffs elected to use the MAC computers assigned to them to prosecute their employer’s work. The plaintiffs contend they used their private password-protected e-mail accounts to communicate with their attorney, and with each other, to protect the confidentiality of their communications. However, when the plaintiffs determined to use MAC’s computers to communicate, they did so cognizant that MAC’s ECP was in effect and that under MAC’s ECP: (a) use of MAC’s automated systems for personal purposes was prohibited; (b) MAC employees “have no right of personal privacy in any matter stored in, created, or sent over the e-mail, voice mail, word processing, and/or internet systems provided” by MAC; and (c) MAC had the right to monitor all data flowing through its automated systems.
The record before the Court establishes that Long helped prepare the MAC Employee Handbook that contains MAC’s ECP. The record also shows that MAC sent all employees annual reminders about its ECP. Therefore, the Court is convinced that Long and Presto knew or should have known of MAC’s ECP. Furthermore, the frequency with which those reminders were distributed to all MAC employees makes incredible any claim by Presto, who held the position senior vice president and general manager, internal audit, that he was ignorant of the ECP. The ECP’s admonishment to MAC’s employees that they would not enjoy privacy when using MAC’s computers or automated systems is clear and unambiguous. The plaintiffs disregarded the admonishment voluntarily and, as a consequence, have stripped from the e-mail messages referenced above the confidential cloak with which they claim those communications were covered. Accordingly, the 15 relevant e-mail messages identified in the plaintiffs’ privilege log are not shielded from disclosure by virtue of the attorney-client communication privilege.
Miller v. Zara USA, Inc., 2017 NY Slip Op 04407 (App. Div. 1st Dept. June 6, 2017)
The Appellate Division reviewed an Order of Supreme Court that granted plaintiff’s motion for a protective order to preclude defendant from accessing plaintiff’s personal documents on a company-owned laptop.
The Appellate division, as follows, summarily reversed and directed plaintiff to produce all items in his privilege log in which he asserted attorney work product protection and remanded to Supreme Court for in-camera review of such documents:
Application of the factors set forth in In re Asia Global Crossing, Ltd.…indicates that plaintiff lacked any reasonable expectation of privacy in his personal use of the laptop computer supplied to him by defendant Zara USA, Inc.…his employer, and thus lacked the reasonable assurance of confidentiality that is foundational to attorney-client privilege. Among other factors, Zara’s employee handbook, of which plaintiff, Zara’s general counsel, had at least constructive knowledge…restricted use of company-owned electronic resources, including computers, to “business purposes” and proscribed offensive uses. The handbook specified that “[a]ny data collected, downloaded and/or created” on its electronic resources was “the exclusive property of Zara,” emphasized that “[e]mployees should expect that all information created, transmitted, downloaded, received or stored in Zara’s electronic communications resources may be accessed by Zara at any time, without prior notice,” and added that employees “do not have an expectation of privacy or confidentiality in any information transmitted or stored in Zara’s electronic communication resources (whether or not such information is password-protected).”
Plaintiff avers, and defendant does not dispute, however, that, while reserving a right of access, Zara in fact never exercised that right as to plaintiff’s laptop and never actually viewed any of the documents stored on that laptop. Given the lack of any “actual disclosure to a third party, [plaintiff’s] use of [Zara’s computer] for personal purposes does not, standing alone, constitute a waiver of attorney work product protections”.
Janes v. Let’s Get Ready, 2017 NY Slip Op 31125(U) (Sup. Ct. N.Y. Co. June 6, 2017)
Supreme Court addressed a motion by defendants for an Order compelling production of documents and interrogatory responses withheld by plaintiff on the basis of attorney-client privilege.
The Court summarized the facts:
During the pendency of this motion, the parties exchanged discovery, leaving in issue request 25, for documents plaintiff took from defendants’ office, and request 33, for documents concerning legal claims plaintiff made against his former employer…They contend that these documents are material and necessary to their case and that absent plaintiff’s timely objection to their requests, he has forfeited his right to challenge them on any basis other than attorney-client privilege[.]
The contentions of the parties:
Defendants assert that documents responsive to request 25 must be produced as they include emails and attachments that plaintiff sent from his work email account to his personal email account, and thus were taken from defendants’ office. As plaintiff habitually sent work-related emails to his personal account, defendants argue, they should have been returned upon his termination. Documents responsive to request 33, defendants contend, will show whether plaintiff settled a similar age discrimination claim against his former employer[.]
In opposition, plaintiff argues that the emails and attachments defendants seek are not within the scope of request 25, as emailing documents from defendants’ office to his personal email account to enable him to work at home does not constitute a taking. He observes that, in any event, defendants possess the emails and attachments as sent emails[.]
Plaintiff also maintains that documents relating to his prior employment are irrelevant, immaterial, inadmissible, and prejudicial, as they are sought solely to demonstrate that he performed poorly at his prior job, and he observes that his motion to prohibit discovery of such documents from his nonparty prior employer pends. He does not explain his failure to register a timely objection to defendants’ document requests or address whether he may challenge those requests on grounds other than attorney-client privilege, and concedes that he did not invoke a privilege in objecting to defendants’ discovery demands[.]
In reply, defendants contend that they are entitled to the production of all documents in plaintiff’s possession, regardless of whether they possess them and, relying on a letter found on plaintiff’s work computer, maintain that documents responsive to request 33 will reflect not only whether plaintiff performed poorly at his prior job, but whether plaintiff settled an identical age discrimination claim against his former employer. Whether or not such discovery may be obtained from his prior employer is irrelevant to whether he may obtain it directly from plaintiff[.]
The applicable provision of the CPLR and the governing law:
CPLR 3122 provides, in relevant part, as follows:
Within twenty days of service of a notice…under rule 3120…the party or person to whom the notice . . . is directed, if that party or person objects to the disclosure, inspection or examination, shall serve a response which shall state with reasonable particularity the reasons for each objection[.]
Where a party does not object to a disclosure demand within the 20-day period prescribed by CPLR 3122, inquiry into the propriety of the demand is limited to determining whether the information sought is privileged under CPLR 3101, or whether the demand is palpably improper…A demand may be palpably improper if it is, inter alia, “overly broad, unduly burdensome, irrelevant, or vague.”[.]
As it is undisputed that plaintiff failed to object or move for a protective order within 20 days of service of the notice, review is limited to whether the materials sought are privileged or whether the demands are palpably improper…As it is also undisputed that plaintiff does not claim that the information sought is privileged, the only issue for review is whether defendants’ requests are palpably improper[.]
Absent any indication that the documents defendants seek in request 25 are relevant to the case, or any authority for the proposition that documents emailed from office to home are “taken” from the office, request 25 is palpably improper.
Peerenboom v. Marvel Entertainment, LLC, 2017 NY Slip Op 01981, App. Div. 1st Dept. (March 16, 2017)
The Appellate Division reviewed an Order of Supreme Court that granted the motion of non-party Isaac Perlmutter for protective orders against disclosure of certain allegedly privileged items to the extent of directing respondent Marvel Entertainment, LLC to produce certain privilege log items, allegedly subject to the marital privilege, for in camera review.
The First Department summarized the controlling law:
Application of the four factors set forth in In re Asia Global Crossing, Ltd.…which we endorse…indicates that Perlmutter lacked any reasonable expectation of privacy in his personal use of the email system of Marvel, his employer, and correspondingly lacked the reasonable assurance of confidentiality that is an essential element of the attorney-client privilege…Among other factors, while Marvel’s email policies during the relevant time periods permitted “receiving e-mail from a family member, friend, or other non-business purpose entity. . . as a courtesy,” the company nonetheless asserted that it “owned” all emails on its system, and that the emails were “subject to all Company rules, policies, and conduct statements.” Marvel “reserve[d] the right to audit networks and systems on a periodic basis to ensure [employees’] compliance” with its email policies. It also “reserve[d] the right to access, review, copy and delete any messages or content,” and “to disclose such messages to any party (inside or outside the Company).” Given, among other factors, Perlmutter’s status as Marvel’s Chair, he was, if not actually aware of Marvel’s email policy, constructively on notice of its contents[.]
Concluding as to spousal privilege that:
Perlmutter’s use of Marvel’s email system for personal correspondence with his wife waived the confidentiality necessary for a finding of spousal privilege[.]
As to attorney-client work product:
Given the lack of evidence that Marvel viewed any of Perlmutter’s personal emails, and the lack of evidence of any other actual disclosure to a third party, Perlmutter’s use of Marvel’s email for personal purposes does not, standing alone, constitute a waiver of attorney work product protections[.]
As to accountant-client privilege:
There is no accountant-client privilege in this state…Perlmutter has failed to bear his burden of showing that the evidentiary law of Florida, which he asserts does recognize an accountant-client privilege, should govern this issue[.]
And as to the agency and common interest documents:
Perlmutter’s reliance on the agency and common interest doctrines is unavailing, as those doctrines do not in and of themselves constitute a source of privilege, and there is no basis for applying them in this case[.]
Accordingly, the Appellate Division modified the Decision of Supreme Court:
…to deny so much of Perlmutter’s motions as sought protective orders on the ground of marital privilege, to direct Marvel to produce to Supreme Court all items in Perlmutter’s privilege log in which he asserts attorney work product protection, and to remand the matter to Supreme Court for in camera review and a determination of whether such documents are in fact protected attorney work product[.]
Matter of Peerenboom v. Marvel Entertainment, LLC, 2017 NY Slip Op 31716(U) (Sup. Ct. N.Y. Co. August 15, 2017)
Upon remand, Marvel submitted close to 1,000 documents for an in camera inspection of those documents claimed to be subject to the attorney work-product privilege.
The Courts summarized the applicable law:
Many of the documents submitted by Marvel are indeed protected by the attorney work-product privilege, which is codified at CPLR 3101(c). The United States Supreme Court has held that the phrase “`work product’ embraces such items as ‘interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs’ conducted, prepared or held by the attorney[.]” However,
[n]ot every manifestation of a lawyer’s labors enjoys the absolute immunity of work product. The exemption should be limited to those materials which are uniquely the product of a lawyer’s learning and professional skills, such as materials which reflect his [or her] legal research, analysis, conclusions, legal theory or strategy[.]
While the privilege extends to experts retained as consultants to assist in analyzing or preparing the case . . . that doctrine affords protection only to facts and observations disclosed by the attorney. Thus, it is the information and observations of the attorney that are conveyed to the expert which may thus be subject to trial exclusion. The work product doctrine does not operate to insulate other disclosed information from public exposure…
Thus, “the mere fact that a narrative witness statement is transcribed by an attorney is not sufficient to render the statement work product,” particularly where a lay person could have transcribed the statement…Similarly, an investigative report does not become privileged merely because it was sent to an attorney. Nor is such a report privileged merely because an investigation was conducted by an attorney; a lawyer’s communication is not cloaked with privilege when the lawyer is hired for business or personal advice, or to do the work of a non-lawyer.
…Nor are an investigator’s notes protected by the work-product privilege where there is no evidence that the investigator conducted any interviews with persons in anticipation of litigation…Although information received by an attorney from third persons may not itself be privileged: a lawyer’s communication to a client that includes such information in its legal analysis and advice may stand on different footing. The critical inquiry is whether, viewing the lawyer’s communication in its full content and context, it was made in order to render legal advice or services to the client[.]
Likewise, “[t]he discovery of witnesses, even though the result of the attorney’s zeal and investigative efforts, does not qualify as an attorney’s work product.”…Even where an investigation is conducted by an attorney, and documents are generated in connection therewith, unless the documents sought to be protected from disclosure indicate that an attorney had conducted any legal research or analysis or rendered any legal opinion about the client’s legal position, the work-product privilege is inapplicable…Indeed, even if the privilege were applicable to certain documents generated in connection with an investigation initiated by an attorney, and the privilege were not waived, a litigant may still be entitled to the materials sought from an investigator if the litigant “has substantial need of [them] in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means[.]”
Applying these well-settled rules, the court concludes that the documents bearing the following identification numbers in the privilege log submitted to the court by Perlmutter, and adopted by Marvel, are subject to the attorney work-product privilege, and are exempt from disclosure by Marvel to Peerenboom: [documents enumerated by number]. All other documents claimed to be exempt from disclosure by virtue of the attorney work-product privilege are not exempt, and must be disclosed by Marvel to Peerenboom within 30 days of this order.
Scott v. Beth Israel Med. Ctr. Inc., 2007 NY Slip Op 27429 [17 Misc 3d 934] (October 17, 2007)
Plaintiff-Dr. Scott moved Supreme Court for a protective order requiring defendants Beth Israel Medical Center and Contiuum Health Partners, Inc. to return all email correspondence between plaintiff and his attorney.
Supreme Court described the action:
Under the contract at issue here, BI agreed to pay Dr. Scott $14,000,000 in severance pay if he was terminated without cause. BI asserts that Dr. Scott was terminated for cause while Dr. Scott, believing that he was terminated without cause and without receiving any of the specified severance pay, commenced this action for breach of contract against BI.
The motion for a protective order:
On August 10, 2005, BI’s counsel, Marvin Wexler of Kornstein Veisz Wexler & Pollard, LLP, sent a letter to plaintiff’s counsel, Stuart Kagen of Paul Weiss Rifkind Wharton & Garrison LLP…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. The letter further stated that although no one at BI had read the e-mails yet, BI believed that any potential privilege attached to the communications had been waived by use of BI’s e-mail system.
Mr. Kagen responded on August 15, 2005 informing Mr. Wexler that the documents are privileged communications belonging to Dr. Scott for which there had been no waiver of privilege and requesting the immediate return of the e-mails to Dr. Scott.
When BI refused to return the documents, the parties called Andrea Masley, the judge’s court attorney, who instructed BI to provide copies of the e-mails to Dr. Scott, place copies of the documents into a sealed envelope and bar anyone from reviewing the e-mails pending a resolution by the court. Thereafter, Dr. Scott filed this motion for a protective order seeking the return of the documents.
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 subject emails and the hospital’s policy:
The e-mails in question were all written between February 2004 and August 3, 2004 using Dr. Scott’s employee e-mail address and were all sent over BI’s e-mail server.
BI’s e-mail policy states:
This Policy clarifies and codifies the rules for the use and protection of the Medical Center’s computer and communications systems. This policy applies to everyone who works at or for the Medical Center including employees, consultants, independent contractors and all other persons who use or have access to these systems.
- All Medical Center computer systems, telephone systems, voice mail systems, facsimile equipment, electronic mail systems, Internet access systems, related technology systems, and the wired or wireless networks that connect them are the property of the Medical Center and should be used for business purposes only.
- All information and documents created, received, saved or sent on the Medical Center’s computer or communications systems are the property of the Medical Center.
Employees have no personal privacy right in any material created, received, saved or sent using Medical Center communication or computer systems. The Medical Center reserves the right to access and disclose such material at any time without prior notice.
This policy is contained in the BI Human Resources Policy and Procedure Manual. According to Bart Metzger, vice-president of human resources for BI, it was available in hard copy and maintained in the office of the administrator for each department and on BI’s intranet…Dr. Scott was the chairman of the orthopedics department and worked closely with the administrator of that department. In 2002, BI distributed to every employee an employee handbook that contained a brief summary of the BI e-mail policy…From 2002 on, newly hired doctors were required to sign a form acknowledging that they had read and were familiar with BI’s e-mail policy…Dr. Scott never signed such an acknowledgment and denies knowledge of the policy.
Every e-mail that PW sent to Dr. Scott included the following notice:
This message is intended only for the use of the Addressee and may contain information that is privileged and confidential. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please erase all copies of the message and its attachments and notify us immediately.
PW never received any notification from BI that its e-mails to Dr. Scott were monitored by BI.
The hospital argued “that Dr. Scott’s e-mails are not protected by the attorney-client privilege at all as they were not made in confidence since Dr. Scott used his BI e-mail to communicate with his attorney.”
Noting that the “attorney-client privilege is codified in CPLR 4503. The test for privilege is whether the client communicates with an attorney, in confidence, for the purpose of obtaining legal advice”[.]
Dr. Scott’s claim:
Dr. Scott claims that the e-mails were made in confidence, relying on CPLR 4548 which states: “No communication privileged under this article shall lose its privileged character for the sole reason that it is communicated by electronic means…or because persons necessary for the delivery or facilitation of such electronic communication may have access to the content of the communication.” The purpose of CPLR 4548 was to recognize the widespread commercial use of e-mail…“The new CPLR provision, in effect, constitutes a legislative finding that when the parties to a privileged relationship communicate by e-mail, they have a reasonable expectation of privacy.”…However, some supporters of the bill warned that there are some types of information that are just too sensitive to be transferred over e-mail, such as confession of a crime or trade secret, and thus could not expect to retain the privilege…Accordingly, this statute does not absolve an attorney of his or her responsibility to assess the risk of communicating by e-mail with a client…As with any other confidential communication, the holder of the privilege and his or her attorney must protect the privileged communication; otherwise, it will be waived. For example, when a spouse sends her spouse a confidential e-mail from her workplace with a business associate looking over her shoulder as she types, the privilege does not attach[.]
[T]he court is not prepared to determine that attorney-client discussions about suing the client’s employer would rise to the same level as confessing by e-mail to a crime. However, the effect of an employer e-mail policy, such as that of BI, is to have the employer looking over your shoulder each time you send an e-mail. In other words, the otherwise privileged communication between Dr. Scott and PW would not have been made in confidence because of the BI policy.
CPLR 4548 does not preclude an employer from adopting a no personal use policy. Indeed, the language of the statute (“[n]o communication . . . shall lose its privileged character for the sole reason”) contemplates that there may be other reasons that an electronic communication may lose its privileged character. Therefore, the court must determine whether Dr. Scott’s use of BI’s e-mail system to communicate…with his attorney in violation of BI’s policy renders the communication not made in confidence and thus destroys the attorney-client privilege if it ever applied.
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, Ltd., which is a federal bankruptcy case virtually identical to this case and a case upon which both parties rely…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…The issue in the case was identical to the issue here…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…The Asia Global…court concluded that the attorney-client privilege would be inapplicable if
(1) . . . the corporation maintain[s] a policy banning personal or other objectionable use, (2) . . . the company monitor[s] the use of the employee’s computer or e-mail, (3) . . . third parties have a right of access to the computer or e-mails, and (4). . . the corporation notif[ies] the employee, or was the employee aware, of the use and monitoring policies?[.].
BI’s policy clearly satisfies the first requirement. The court rejects Dr. Scott’s argument that his contract supersedes BI’s policy. Paragraph 12 of the contract provides that it will supersede conflicting BI policies. Dr. Scott argues that implicit in BI’s contractual obligation to provide computer equipment is Dr. Scott’s right to use that equipment for personal reasons. However, there is no conflict where BI agrees to provide Dr. Scott with computer equipment and simultaneously regulates its use. BI has the right to regulate its workplace including the usage of its computers and resources…the second requirement is satisfied because BI’s policy allows for monitoring. Although BI acknowledges that it did not monitor Dr. Scott’s e-mail, it retains the right to do so in the e-mail policy.
Dr. Scott challenges the policy of a hospital retaining the right to review its employees’ e-mails based on HIPAA,…the federal statute that protects patient health information. First, the court rejects this argument because the e-mail at issue is between Dr. Scott and his attorney and has nothing to do with patients. Second, a hospital can certainly have access to its patients’ information. Dr. Scott’s suggestion otherwise is preposterous.
The third Asia Global factor as to whether third parties have access to the computer or e-mails is not relevant here. The New York legislature in enacting CPLR 4548 has decided that access, or potential access, by third parties, such as “persons necessary for the delivery or facilitation of such electronic communication may have access to the content of the communication,” does not destroy the privilege. Further, it does not appear that others could have access to Dr. Scott’s computer. Prior to his departure, Dr. Scott’s computers were located in his locked office and home. According to BI’s chief technology officer, BI’s policy was to delete a departing employees’ information from the computer hardware itself, but not from the BI e-mail server…Accordingly, the only personnel with continuing access to the e-mails at issue after Dr. Scott’s departure would be the computer staff which is addressed by CPLR 4548.
The final factor is whether Dr. Scott had notice of the policy. Dr. Scott had both actual and constructive knowledge of the policy. BI disseminated its policy regarding the ownership of e-mail on its server to each employee in 2002, including Dr. Scott, and provided Internet notice[.]
Dr. Scott’s effort to maintain that he was unaware of the BI e-mail policy barring personal use is rejected. As an administrator, Dr. Scott had constructive knowledge of the policy…He required newly hired doctors under his supervision to acknowledge in writing that they were aware of the policy. Under these circumstances, Dr. Scott is charged with knowledge of the BI e-mail policy.
And, as to work product:
Alternatively, Dr. Scott argues the e-mails are privileged work product. The work product doctrine provides a qualified privilege against disclosure for materials prepared by an attorney in anticipation of litigation…The issue is whether the work product privilege was waived. Under New York State law, work product is waived when it is disclosed in a manner that materially increases the likelihood that an adversary will obtain the information…While an inadvertent production of a privileged work product document generally does not waive the applicable privilege, there is an exception to that rule if the producing party’s conduct “was so careless as to suggest that it was not concerned with the protection of the asserted privilege”…Critical to this determination is the reasonableness of the precautions taken to prevent inadvertent disclosure[.]
Dr. Scott argues that PW’s notice included in every e-mail PW sent, which warned that the e-mails may be confidential and that it should be notified if anyone other than the intended recipient gains access to the e-mail, is enough to take it out of the exception regarding inadvertent disclosure. However, even the New York State Bar Association has stated, “a lawyer who uses technology to communicate with clients must use reasonable care with respect to such communication, and therefore must assess the risks attendant to the use of that technology and determine if the mode of transmission is appropriate under the circumstances.”…PW’s notice cannot create a right to confidentiality out of whole cloth. The notice might be sufficient to protect a privilege if one existed. PW’s notice cannot alter the BI e-mail policy. When client confidences are at risk, PW’s pro forma notice at the end of the e-mail is insufficient and not a reasonable precaution to protect its clients.
Lessons learned: Think twice (maybe three times) before using company email for personal matters.* Better yet, set up and use an alternative email account for matters that do not relate to your job or business.
*Similar “no expectation of privacy” concerns may also arise when using an office telephone for non-business calls.