You could get sued, although the lawyer in Medcalf v Walsh (SDNY, 9 April 2013) did manage to have the assistant’s action against him and his wife dismissed. Valerie Medcalf worked for George Walsh, a lawyer, and had full access to his work e-mail account. Medcalf became pregnant and did not have a particularly easy time of it: she needed time off for numerous medical appointments, suffered severe post-partum depression, underwent psychiatric treatment and went on medical leave (all the while continuing to check her boss’s e-mail and manage responses). In the course of doing that, she came across a series of e-mails between Walsh and his wife Evelyn, in which they expressed scepticism about the extent of Medcalf’s illness, her need for medical leave and (on the strength of a baby picture Medcalf had circulated) her ability to keep herself and her child sufficiently clean. Incensed, Medcalf confronted Mrs Walsh, cc'ing her boss and bcc'ing her supervisors at the firm. She also asked the firm to investigate. The firm did, and then fired Medcalf. Medcalf sued the Walshes, alleging that they had defamed her, intentionally interfered with her business relations (by getting her fired) and intentionally inflicted emotional distress.

All claims failed. There was no defamation because there had been no publication of the statements between the Walshes. Communications between spouses are the subject of absolute privilege under New York law, so their exchange was entirely private for the purposes of defamation law. The fact that they used the firm’s e-mail system didn’t alter that (although it may have rendered their communications admissible in evidence). Medcalf’s bcc to the firm was not publication either. In any event, the statements made were expressions of opinion about Medcalf’s personal character, not her competence as an assistant. There was no evidence to suggest an intention to inflict emotional distress, which requires 'outrageous' or 'egregious' conduct. Similarly, the facts did not support an intent to cause harm to Medcalf’s economic interests. Reading between the lines, it appears as though Engelmayer J thought she was to a large extent the author of her own misfortunes. But it’s probably not a bad idea to watch what you say in private correspondence, if a third party can see it.