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Dr. W. Norman Scott v. Beth Israel Medical Center Inc., et al

17 Misc. 3d 934 (Sup. Crt. NY Co., October 17, 2007)

Court holds that communications between plaintiff and his counsel, sent from and to  plaintiff over his employer’s email system, were not protected from disclosure by the attorney client privilege because these communications were not made in confidence.  In reaching this result, the Court relied, in large part, on the email policy that governed the use of this company email system.  This policy advised all employees that the company email system should not be used for personal purposes, and that employees had no personal privacy right in email sent over the company email system, which the employer could access and disclose at any time. 

Notably, the Court reached this result notwithstanding the fact that New York’s Civil Practice Law and Rules (“CPLR”) section 4548 provides that “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.”  (Emphasis added).  The Court held that it is the presence of the employer’s computer use policy, and not the fact that the material was transmitted over the company’s email system, that rendered the communication non-privileged.

The Court further held that plaintiff waived any work product privilege attendant to his communications with counsel by transmitting them over a company email system, as they were subject to the email policy recited above, which permitted the company to examine and disclose such communications at any time.  By such actions, the court held that plaintiff was so careless with these materials that he waived any work product privilege attendant thereto and could not claim their disclosure was inadvertent.

As a result, the Court denied plaintiff’s motion for a protective order, which sought to compel his employer to return these communications with counsel to plaintiff.

The lawsuit at issue arises out of defendant’s termination of Dr. Scott.  Pursuant to his contract, Dr. Scott was to receive a severance payment of $14 million if terminated without cause.  Beth Israel claimed this payment was not due because Dr. Scott was terminated for cause.  Believing he was not terminated for cause, and that the severance payment was in fact due, Dr. Scott commenced this lawsuit.

Dr. Scott used Beth Israel’s email system to send and receive communications from and to his counsel, Paul Weiss, related to this lawsuit.  At the time he sent these communications, his use of Beth Israel’s email system was governed by the company’s email policy.  Among other things, this policy prohibited the use of the company email system for personal purposes, and advised employees that they had no expectation of privacy in communications sent over the company system, which the company could inspect and disclose at any time.

Upon being informed by Beth Israel’s lawyers that they were in possession of communications between Dr. Scott and his lawyers, Dr. Scott moved for a protective order, arguing the communications were protected from disclosure by the attorney client and work product privileges.  The Court disagreed, and denied plaintiff’s motion.

In New York, “the test for [attorney client] privilege is whether the client communicates with an attorney, in confidence, for the purpose of obtaining legal advice.”

In determining whether the communications in question were protected by the attorney client privilege, the Court relied on In re Asia Global Crossing, Ltd., 322 B.R. 247 (S.D.N.Y. 2005).  According to Justice Ramos, the court there concluded that the attorney client privilege would not attach to communications sent by an employee to his counsel over a company email system if:

(1) … the corporation maintain[s] a policy banning personal or other objectionable use, (2) … the company monitor[s] use of the employee’s computer or email, (3) … third parties have a right of access to the computer or emails and (4) … the corporation notif[ies] the employee or was the employee aware, of the use and monitoring policies.”

Applying this test, the Court held that Dr. Scott had not communicated with his attorney in confidence because he sent his communications over a company email system subject to Beth Israel’s email policy.  This policy banned personal use of the company system, and gave Beth Israel the right to inspect email communications sent over the company system at any time.  Finally, the Court held that, despite his claims to the contrary, Dr. Scott had both actual and constructive notice of the company’s policy because it was made available to company employees via an company intranet, and because new Doctors, hired after 2002, including those subject to Dr. Scott’s supervision, were required to sign and acknowledge that they were aware of the company’s policy.  Said the Court:  “[t]he otherwise privileged communication between Dr. Scott and PW would not have been made in confidence because of the [Beth Israel email] policy.”

In reaching this result, the Court rejected plaintiff’s argument that CPLR 4548 mandated a determination that his communications were protected from disclosure by the attorney client privilege.  Section 4548 provides that “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 Court held that it was the presence of the employer’s computer use policy, and not the fact that the material was transmitted over the company’s email system, that rendered the communications at issue non-privileged.

Finally, the Court held that by sending the materials to and from plaintiff’s company email account, plaintiff waived any work product privilege attendant in such communications.  In reaching this result, the Court rejected plaintiff’s claim that any such waiver was inadvertent.  When a party is “so careless as to suggest that it was not concerned with the protection of the asserted privilege” it cannot claim that a subsequent disclosure was inadvertent.  Such was the case here, where the materials were transmitted over a company system that gave Beth Israel the right to examine and disclose them at any time. 

In reaching this result, the Court rejected Paul Weiss’ claim that its inclusion of the following notice in each email it sent mandated that the work product privilege barred disclosure of the emails at issue: “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.”
Said the Court:

[Paul Weiss’s] notice cannot create a right to confidentiality out of whole cloth.  The notice might be sufficient to protect a privilege if one existed.  [Paul Weiss’s] notice cannot alter the [Beth Israel] email policy.  When client confidences are at risk, [Paul Weiss’s] pro forma notice at the end of the email is insufficient and not a reasonable precaution to protect its clients.

The Court accordingly denied Dr. Scott’s motion for a protective order.  

The balance of the Court’s decision addresses a motion for a protective order made by Beth Israel.  This motion does not raise issues of Internet Law, and as such will not be discussed here.  If you are interested in this aspect of the Court’s decision, you can review the Court’s decision.

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