A new American case from earlier this year sheds some insight into e-mail privacy and attorney-client priviledge.
Background
In Scott v Beth Israel Med. Ctr. Inc., the plaintiff was a physician and former employee of the defendant who sued his former employer in severance pay for breach of conduct under wrongful termination of employment.
As part of the proceedings, Dr. Scott motioned for a protective order for his private e-mails to his attorney, Stuart Kagen of Paul, Weiss Rifkind Wharton & Garrison LLP, be returned to him by the defendant.
The catch was that these e-mails were sent from his work e-mail address over the defendant’s server.
Statutory Protections v. Company Policy
Even though the e-mails contained private privileged information regarding the case, the defendant refused to return them, citing the company policy,
This Policy clarifies and codifies the rules for the use and protection of the Medical Center’s computer and communications systems. This policy applies to everyone who works at or for the Medical Center including employees, consultants, independent contractors and all other persons who use or have access to these systems.
1. All Medical Center computer systems, telephone systems, voice mail systems, facsimile equipment, 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.
Dr. Scott cited statutory protects in New York state,
no communication 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 used a 4-part test from re Asia Global Crossing, Ltd. to deny Dr. Scott’s protective order:
- Does the corporation maintain a policy banning personal or other objectionable use
- Does the company monitor the use of the employee’s computer or e-mail
- Do third parties have a right of access to the computer or emails
- Did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?
Response from lawyers
Evan Brown, an intellectual property and technology lawyer at Hinshaw & Culbertson LLP in Chicago, explains the implications,
The decision has implications for both individuals and the attorneys who represent them. Employees should be aware that when they are sending messages through their employer’s system, they may not be communicating in confidence. And attorneys sending email messages to their clients’ work email accounts, on matters not relating to the representation of the employer, must be careful not to unwittingly violate the attorney client privilege.
What’s more, although the decision is based on email communications, it could affect the results of any case involving instant messaging or text messaging through the company’s server.
Nicole Black, an attorney in Rochester, New York with Fiandach & Fiandach, disagreed with the verdict.
She cites a reference Curto v. Medical World Communications Inc., a case that was actually discussed in Asia Global, that states:
(I)n light of the few instances of actual monitoring … together with the fact that many … employees had personal e-mail accounts at work, employees were lulled in a ‘false sense of security’ regarding their personal use of company-owned computers,
She claims that the 4-part test is not met in this case, and concludes,
The court’s holding in this case ignores the legislative intent… and the legitimate expectation of confidentiality the plaintiff had regarding e-mail communication with his attorneys. Any other conclusion fundamentally weakens the attorney client privilege by eroding the trust that serves as the very foundation of an open, honest and successful attorney-client relationship.
Kelly D. Talcott, also an intelectual property and technology lawyer, and partner at K&L Gates in New York, writes a response in the New York Law Journal,
For many of us, George Orwell’s “1984” was required reading at some point during our formative years…
In the 23 years since the actual year 1984 came and went — happily with few of the horrors envisioned by Mr. Orwell when he finished the novel back in 1948 coming to pass — we have allowed our privacy to seep away. Instead of ceding control of our private information to a single all-powerful regime, however, we dole it out in bits and pieces to a diffuse network of eager information-gatherers, many if not most of them in the private sector.
There are cases supporting both sides of privacy law, and the situation is far from clear in the U.S. But the situation in Canada is probably even less clear.