In an era in which e-mail has, in many contexts, replaced in-person and telephone conversations, it is tempting to assume that courts will afford e-mail from one’s personal e-mail account special protection — on grounds of privilege, privacy, or both. For example, some might assume that all e-mail exchanged between a lawyer and client is privileged because of the attorney/client relationship, or that e-mail sent via a private e-mail address affords an expectation of privacy. Some recent court decisions, however, suggest that these assumptions are not necessarily valid.

Waiver of Privilege through Personal E-Mail Transmission

In Scott v. Beth Israel Medical Center, 2007 WL 3053351 (Sup. Ct. N.Y. Co. Oct. 17, 2007), the Commercial Division of the New York State Supreme Court ruled that e-mail correspondence between a physician and his lawyer sent over a hospital server was not protected by either attorney-client privilege or the work product doctrine. Plaintiff, who was suing the hospital, his former employer, for wrongful termination and $14 million in severance payment, had e-mailed with his lawyers from his work e-mail address. The hospital where the physician worked (i) had a policy prohibiting personal use of work e-mail and reserving the right to monitor employees’ use of work e-mail, and (ii) monitored employees’ use of work e-mail.

When the hospital discovered correspondence between plaintiff and his attorneys, the hospital notified the plaintiff, who requested a protective order to prevent defendant from reading such communications. The court held that plaintiff had waived the attorney-client privilege because the doctor had been on notice of the hospital’s policy and nevertheless chose to e-mail his lawyers from his work account.

Plaintiff ’s counsel argued that he had preserved privilege by appending the following pro forma message to the e-mails he had sent his client:

This message is intended only for the use of the Addressee and may contain information that is privileged and confidential. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please erase all copies of the message and its attachments and notify us immediately.

Id. at *2. The court ruled that this boilerplate did not preserve privilege; rather, plaintiff ’s counsel had waived the privilege by acting carelessly. In particular, counsel had acted in a way that materially increased the likelihood that his adversary would obtain the information.

Similarly, in Long v. Marubeni America Corp., 2006 WL 2998671 (S.D.N.Y. Oct. 19, 2006), employees claimed privilege as to e-mails sent from personal and password protected e-mail accounts on their work computers, to their attorneys, concerning litigation that they wished to pursue against their employer. These e-mails, unbeknownst to the employees, were stored on the employer’s computers in temporary Internet files, in a separate folder that was accessible only to authorized employees of the company. Id. at *2. The employee handbook stated that “all communications and information transmitted by, received from, created or stored in [the work computers’] automated systems . . . are company records” and company property, and that the company had the “right to monitor” its automated systems. The employee handbook further stated that employees “have no right of personal privacy in any matter stored in, created, received, or sent over the . . . word processing and/or internet systems provided by the company.” Id. at *1.

In the discovery process, defendant found several e-mails stored in these folders which, although responsive, appeared to implicate the attorney-client privilege. The court directed defendants to allow plaintiffs to view these files and prepare a privilege log to serve on defendants. Plaintiffs then moved to preserve the privilege and work product protection. Id. at **3-4. After concluding that fifteen e-mails on the privilege log might otherwise have been privileged, the court held that in light of the language in the employee handbook, the “confidentiality element” did not exist, and the “assertion of the attorney-client privilege to safeguard” the communication from disclosure was improper. Id. at *3. The employees elected to use their work-assigned computers to communicate with their attorney, and because the employees knew or should have known about the company computer use policy, attorneyclient privilege did not apply. Id. at *4. For similar reasons, the court also concluded that the employees had waived any otherwise applicable work product protection. Id.

Is the Expectation of Privacy in Personal E-Mails Reasonable?

Apart from the issue of attorney client privilege, use of a personal e-mail account will not necessarily protect other information that a user might consider personal and confidential. For example, in Sims v. Lakeside School, 2007 WL 2745367 (W.D. Wa. Sept. 20, 2007), the court ruled that an employee who used a laptop issued by his employer did not have a reasonable expectation of privacy where the employee had notice of the employer’s policy reserving the right to inspect the laptop and monitor e-mails sent through the company’s server. The court, however, held that the employee did have a reasonable expectation of privacy regarding personal e-mails he sent from the laptop using an internet service provider not controlled by the employer.

The expectation of privacy should not be taken as a foregone conclusion every time one sends work-related emails from a private e-mail account. In FTC v. Ameridebt, Inc., 2006 WL 618563 (N.D. Cal. Mar. 13, 2006), the court required a third party (Baker) to give permission to Google, Inc. to produce e-mails from one of his accounts. Baker argued that the court should quash the subpoena because it sought private and confidential information, including personal financial information. In an earlier hearing, the court noted that Baker failed to provide any evidence to support his contention, but nevertheless modified the subpoena to limit its scope to one gmail account Baker used as the contact address for his business. On appeal, Baker argued that he had “received and sent thousands, if not tens of thousands, of personal, private e-mails which have nothing whatsoever to do with the case in which the subpoena originated.” Id. at *1. Baker also argued that paying his attorneys to screen these documents and to create a privilege log would “necessarily involve an exorbitant amount of attorney time resulting in the incurrence of thousands of dollars of attorneys’ fees for which Mr. Baker will not be reimbursed.” Id. The court rejected these arguments, stating that because Baker had not raised them in his motion to quash, he had waived them on appeal. The court also expressed skepticism as to whether the volume of the e-mails was as great as Baker had estimated, and argued that Baker could likely screen the e-mails efficiently by using search terms to which the parties agreed. The court noted that the requesting party had encouraged Baker to submit reimbursement requests (that the requesting party might or might not grant). More importantly, the court stated that “Baker has not described how voluminous the Google production actually is, how many documents are non-responsive, how many documents are privileged, and how many hours his attorneys estimate that reviewing the documents and creating the privilege log would take. Without any objective facts, the Court cannot infer that the production would be burdensome or whether a cost-shifting arrangement would be fair.” Id. at *2.

In another case, Jordan v. Dillard’s, Inc., 2006 WL 2873472 (D. Kan. Oct. 5, 2006), defendant sought to compel plaintiff to produce her hard drive and e-mail correspondence between plaintiff and her daughter that discussed plaintiff ’s employment. The court ordered plaintiff to produce the e-mails but denied the request for plaintiff ’s hard drive, holding that the defendant had provided neither “justification for so broad or invasive a request” nor “any likelihood that the request is reasonably calculated to lead to the discovery of admissible evidence.” Id. at *1.

Conclusion

It is simply not safe to assume that private e-mail — when sent through a workplace server or using hardware provided by an employer — will remain private in litigation. Lawyers and clients should accordingly act with care and think twice before hitting the send button when personal — and sometimes privileged — communications are involved.