Employee e-mails to personal attorney using company e-mail address that is subject to monitoring are not privileged
An employee’s messages to his attorney sent via the employee e-mail system, a practice which was against company policy and subject to monitoring by the employer, are not protected by the attorney-client privilege or work product doctrine. Scott v. Beth Israel Medical Center Inc., No. 602736/06, 2007 N.Y. Misc. LEXIS 7114 (N.Y. Sup. Ct. N.Y. Cty Oct. 17, 2007). The court denied the employee’s motion for a protective order barring the employer from viewing his e-mails concerning the instant lawsuit sent to his attorney from his employee account. In finding that the employee waived privilege, the court concluded that the employer had an e-mail policy banning personal use and that the employee, as an administrator, had constructive notice that the employer had the right to monitor e-mail communications over its network. The court also rejected the employee’s work product doctrine argument based upon his attorney’s confidentiality notice e-mail footer, holding that the attorney’s pro forma confidentiality notice at the end of the e-mails was “insufficient and not a reasonable precaution” that would provide a qualified privilege against disclosure.
This case is likely to add fuel to the fire for attorneys challenging an assertion of the attorney-client privilege. Companies should consider adding to their e-mail policies a statement that the use of corporate e-mail to communicate with personal attorneys could result in a loss of any privilege that might otherwise attach to the communication.