Electronic Discovery Law
Email Communications Between Physician and His Attorney Exchanged Over Hospital's Email System Not Protected by Attorney-Client Privilege or Work Product Doctrine
Plaintiff is a physician who sued for breach of contract based upon his termination from defendant hospital (“BI”). Under the contract at issue, BI agreed to pay Dr. Scott $14 million in severance pay if he was terminated without cause. BI asserted that Dr. Scott was terminated for cause, while Dr. Scott believed he was terminated without cause and without receiving any severance pay.
In August 2005, BI’s counsel wrote Dr. Scott’s counsel stating that BI was in possession of email correspondence between Dr. Scott and his counsel pertaining to Dr. Scott’s dispute with BI, as well as emails written between Dr. Scott and another attorney regarding a separate dispute. The letter stated that, although no one at BI had read the emails yet, BI believed that any potential privilege attached to the communications had been waived by use of BI’s email system. Dr. Scott’s counsel responded, asserting that the emails were privileged communications for which there had been no waiver, and requesting their immediate return. BI refused to return the emails, and the parties called the judge’s court attorney, who instructed BI to provide copies of the emails to Dr. Scott, place copies of the documents into a sealed envelope and bar anyone from reviewing the emails pending a decision by the court. Thereafter, Dr. Scott filed a motion for a protective order seeking the return of the emails.
Dr. Scott argued that the emails were privileged under the attorney-client privilege and work product doctrine. BI countered that the emails were never protected because Dr. Scott could not have made the communications in confidence when using BI's email system in violation of BI's email policy. BI also argued that both privileges were waived by Dr. Scott's use of BI's email system.
The emails in question were all written between February and August 2004 using Dr. Scott's employee email address, and were all sent over BI's email server. BI’s email policy stated, among other things, that the electronic mail systems were the property of BI and should be used for business purposes only, that employees “have no personal privacy right in any material created, received, saved or sent using Medical Center communication or computer systems,” and that BI reserved the right to access and disclose such material at any time without prior notice. Dr. Scott denied knowledge of the policy.
The court found that the effect of an employer email policy, such as that of BI, was “to have the employer looking over your shoulder each time you send an e-mail.” It concluded: “In other words, the otherwise privileged communication between Dr. Scott and [his counsel] would not have been made in confidence because of the BI policy."
Because there was no New York case on point to determine whether the communications at issue were made in confidence or not, the court took guidance from In re Asia Global Crossing, Ltd., 322 B.R. 247 (S.D.N.Y. 2005), a federal bankruptcy case the court found “virtually identical to this case,” and a case upon which both parties relied. That court held that the following four factors should be considered in determining whether an email communication sent over an employer's network was made in confidence:
(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee's computer or e-mail, (3) do third parties have a right of access to the computer or emails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?
The court denied Dr. Scott’s motion for a protective order. It found that the communications were not made in confidence (and were therefore not privileged) because: (1) BI had a policy banning personal use; (2) BI's policy allowed for monitoring; and (3) as a hospital administrator, Dr. Scott had both actual and constructive knowledge of the policy. The court observed: “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.” The court found that the work product doctrine likewise did not protect the emails.
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