Archive: November 2, 2007

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Email Communications Between Physician and His Attorney Exchanged Over Hospital’s Email System Not Protected by Attorney-Client Privilege or Work Product Doctrine

Email Communications Between Physician and His Attorney Exchanged Over Hospital’s Email System Not Protected by Attorney-Client Privilege or Work Product Doctrine

Scott v. Beth Israel Med. Center Inc., 2007 WL 3053351 (N.Y. Sup. Ct. Oct. 17, 2007)

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.
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