A recent New York trial court decision provided a helpful reminder that individuals wishing to avail themselves of the speed and apparent privacy of e-mail, as well as attorneys representing corporate employees in their individual capacities, should think twice about exchanging sensitive information via the client’s e-mail address at work. The employer in that case, a hospital, had a written e-mail policy providing that all hospital computers and electronic mail systems should be used only for business purposes; specified that all materials created, received, saved or sent on the hospital’s computer or communications systems belonged to the hospital; cautioned that employees had no personal privacy right in any such materials; and warned that the hospital reserved the right to monitor and disclose any such communications at any time without prior notice. After the hospital’s chief of orthopedics sued, claiming wrongful termination and breach of contract, the hospital discovered in its computer system e-mails which the doctor had exchanged during his last six months at the hospital with the prominent law firm representing him.
The doctor’s attorneys filed a motion for a protective order, claiming that the hospital should not be allowed to read, retain, or use the e-mails in question because they were protected by the attorney-client and work-product privileges. The court denied the doctor’s motion, finding that the doctor, as an employee and as a supervisor, had both actual and constructive knowledge of the hospital’s e-mail policy. It went on to rule that “[a] ‘no personal use’ policy combined with a policy allowing for employer monitoring and the employee’s knowledge of these two policies diminishes any expectation of confidentiality” and, therefore, eliminates the confidentiality required for application of the attorney-client privilege. The court also applied New York State law to the effect that any work-product privilege “is waived when [the product] is disclosed in a manner that materially increases the likelihood that an adversary will obtain the information.” It did not matter that the hospital had never monitored the doctor’s e-mails since it had retained the right to do so in its policy. Nor did the confidentiality notice attached to his lawyers’ e-mails affect the court’s decision since the lawyer’s one-sided declaration of confidentiality was insufficient to alter the hospital’s e-mail policy. Scott v. Beth Israel Medical Center, Inc., 2007 NY Slip Op. 27429, 17 Misc. 3d 934, 2007 N.Y. Misc. LEXIS 7114 (NY Sup. Ct. 2007).