Attorney-Client Privilege — Email — Waiver by Use of Another’s Computer

Our June 3, 2007 post reported a decision in which transmittal of attorney-client privileged communications via a fiancй’s computer was held not to effect a waiver of privilege. Use of a computer at work can be another matter. In Scott v. Beth Israel Med. Ctr., 2007 N.Y. Misc. LEXIS 7114 (Sup. Ct. N.Y. Cty. Oct. 17, 2007), the plaintiff, a physician on the staff of the defendant hospital, communicated with his counsel over the internet from work. The hospital retrieved the emails and refused to disgorge them when plaintiff’s counsel demanded their return, claiming they were privileged. The hospital contended that any privilege was waived because the hospital’s written email policy — contained in its human resources manual — clearly stated that:

1. All Medical Center ... 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.

2. All information and documents created, received, saved or sent on the Medical Center's computer or communications systems are 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.

Justice Charles E. Ramos adopted the four-part test of a In re Asia Global Crossing, Ltd., 322 BR 247 (S.D.N.Y. 2005), which holds that privilege is waived by an employee who transmits or receives privileged communications over his or her employer’s email system 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, (c) . . . third parties have a right of access to the computer or emails, and (d) . . . the corporation notif[ies] the employee, or was the employee aware, of the use and monitoring policies?"

Applying these standards, Justice Ramos concluded that both privilege and work product protection waived as to all of this email traffic.

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