Scott v. Beth Israel Medical Center, ___N.Y.S.2d ___, 2007 WL 3053351 (N.Y. Sup. 2007).

Brief Summary
Neither work product nor attorney-client privilege protected e-mails sent by an employee on his employer’s e-mail account.

Complete Summary
Dr. Norman Scott brought a breach of contract action against his former employer, Beth Israel Medical Center (BI), seeking severance pay. While employed by the medical center, Dr. Scott had communicated with his attorney (hereinafter “PW”) using his office e-mail account. In court, Dr. Scott asserted that these e-mails were protected by either attorney-client privilege or the work product doctrine. In determining that attorney-client privilege did not apply, the court assessed the reasonableness of Dr. Scott’s expectation of privacy in light of Beth Israel’s e-mail policy and Dr. Scott’s notice of the policy.

The court applied a three-step test based on In re Asia Global Crossing, Ltd., 322 B.R. 247 (S.D.N.Y. 2005). Namely, attorney-client privilege is 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, [and]

c) * * *

d) . . . the corporation notif[ies] the employee, or was the employee aware of the use and monitoring policies?

Scott at *4 (quoting Asia Global, 322 B.R. at 257) (part (c) was not used here because it was not relevant). The court focused primarily on the medical center’s e-mail policy which stated in part:

The policy applies to everyone who works at or for 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.

Id. at *2. Dr. Scott argued that this policy was trumped by a New York law which stated that electronic communications maintain privilege despite the fact that persons necessary for the delivery or facilitation of such electronic communication may have access to the content of the communication. Id. at *3. The court disagreed.

Also key to the court’s analysis was Dr. Scott’s notice of the policy. In 2002, Beth Israel began requiring new hires to sign a form acknowledging that they had read and were familiar with Beth Israel’s e-mail policy. Dr. Scott, having started work pre-2002, never signed one of these forms, but he was nevertheless on notice of the policy because he had personally required newly hired doctors to sign such forms.

Finally, the court held that work product was waived. 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.” Id. at *5. PW’s pro forma notice of confidentiality was of no consequence because “PW’s notice cannot alter the Beth Israel e-mail policy.” Id. at *6.

Significance of Opinion
Decisions in this field are fact-specific and jurisdiction specific. For example, an employee’s access through an office computer to a private e-mail account is commonly held to be privileged. See, e.g., National Economic Research Associates, Inc. v. Evans, Legg, 21 Mass. L. Rptr. 337, 2006 WL 2440008 (Mass. Super. 2006). Nonetheless, forewarned is forearmed.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.