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WARNING: E-mails with Attorney Transmitted in Violation of Employer ”No Personal Use” Policy will NOT be Protected by Attorney-Client Privilege or Work Product Privilege

In an employment contract dispute, the plaintiff employee-doctor made a motion for a protective order regarding all e-mail correspondence between the employee and his attorney pursuant to the attorney-client privilege, CPLR 4503, and the work product doctrine, CPLR 3101(c). The defendant employer-medical center made a motion for a protective order as to discovery concerning a governmental or regulatory investigation. The court ultimately granted defendant’s motion, but denied plaintiff’s motion because it found that he waived attorney-client privilege as well as the work product privilege. Given the facts of the case, and specifically the employer’s “no personal use” policy, this result was not surprising.

It is important to note, as plaintiff originally argued, that CPLR 4548 provides that otherwise privileged communications do not lose their privileged character simply because they are communicated electronically.  CPLR 4548 “‘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.’” Scott v. Beth Israel Medical Ctr., 17 Misc.3d 934,938 quoting Vincent C. Alexander, practice Commentaries, McKinney’s Cons Law of NY, Book 7B, CPLR 4548 at 849. Yet, the same CPLR section does not preclude an employer from adopting a no personal use policy as defendant did in the case at hand and, in fact, implies that privilege of such communications may be waived in other ways. In determining that plaintiff waived both attorney-client and work product privilege, the court relied heavily upon defendant’s e-mail policy.

The court looked to In re Asisa Global Crossing, Ltd., 322 BR 247 (SD NY 2005) for guidance and ultimately held that the corporation maintained a policy banning personal or other objectionable use; the company monitored the use of the employee’s computer or e-mail; and the corporation notified the employee or the employee was otherwise aware of the use and monitoring policies. In fact, the court held that plaintiff had both actual and constructive notice of the defendant’s no personal use policy and that any reasonable expectation of privacy was, therefore, precluded and attorney-client privilege waived.

As for plaintiff’s alternative argument of work product privilege, the court stated that under New York law, work product is waived when it is disclosed in a manner that materially increases the likelihood that an adversary will obtain the information.  Further, privilege is not waived by inadvertent disclosure, but is waived if the producing party’s conduct “was so careless as to suggest that it was not concerned with the protection of the asserted privilege.” Securities & Exch. Commn. V. Cassano, 189 FRD 83, 85 (SD NY 1999).  Plaintiff argued that his attorney’s e-mails included warnings that the e-mails may be confidential and that the attorney should be notified if anyone other than the intended recipient gained access to the e-mail and that this was enough to remove the e-mails from the realm of inadvertent disclosure.  The court, however, disagreed and concluded that the pro forma notice at the end of the e-mail was simply insufficient given defendant’s policy.

The court then took the opportunity to remind attorneys that the NY Bar Association has stated that “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.” NY St Bar Assn Comm on Prof Ethics Op No. 782 (Dec. 8, 2004). Accordingly, plaintiff’s attorney did not take reasonable precaution to protect his client given the facts at hand and defendant’s policy.

In conclusion, whether you are the party or the attorney, be smart! Use common sense! Even if your employer does not have a policy similar to that in the case at hand (though most do!), why would you risk e-mailing your attorney regarding a law suit against your employer from your work computer?  How does this make any sense?

As a party, if there is a policy in place, the court will happily find that you did not have a reasonable expectation of privacy and thereby waived attorney-client privilege; if there is not a policy in place, the court will find that you were (1) careless and unconcerned with the protection of work product privilege and/or (2) disclosed the information in a manner that materially increased the likelihood of your adversary obtaining the information and thereby waived work product privilege.

As an attorney, you should know better! For ethical reasons, for your own good, and for the good of your client, when you use technology to communicate with your client regarding his or her case, be sure to assess the risks of using such a form of communication and make a judgment call as to the best way to move forward.  It goes without saying, or sadly, maybe this case shows that it doesn’t, that is best to advise your client not to e-mail you from his or her work computer when suing an employer.  If you receive an e-mail from a client from a work e-mail address, no matter the opposing party, use common sense, and evaluate and advise your client of the risks inherent in communicating through such a channel.

Note: This case was questioned to some extent in Stengart v. Loving Care Agency, 201 N.J. 300 (2010), wherein the court held that an employee who used her own private e-mail account on her employer’s laptop computer while at home was sending a confidential communication notwithstanding that the employer had a “no personal use” policy. See also Matter of Haber, 33 Misc. 3d 1203A (Sup. Ct. Bronx Co. 2011).

 

Edvie received her B.A. and M.A. in English from Seton Hall University.  She will receive her J.D. from Seton Hall University School of Law in May 2012.  Throughout her time at Seton Hall Law, Edvie served as chair of the Women’s Law Forum, vice president of the St. Thomas More Society, and editor of the Urban Education Law & Policy Initiative Blog. Edvie currently clerks for a prominent employment firm in Woodland Park, New Jersey.  After graduation, she will clerk for an assignment judge in the Superior Court of New Jersey. 

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