This week's Legal Currents column, which is published in The Daily Record, is entitled "Technology and the attorney-client privilege" The article is set forth in full below, and a pdf of the article can be found here.
My prior articles can be accessed here.
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Technology and the attorney-client privilege
The attorney-client privilege was significantly
weakened by a recent New York
County Supreme Court decision.
In Scott v. Beth Israel Medical Center Inc., 2007
NY Slip Op. 27429, the court held that a New
York physician’s e-mails to his lawyers were
not privileged.
The e-mails in question related to possible employment litigation against the plaintiff physician’s then-employer, Beth Israel Medical Center, and were sent over the hospital’s e-mail server using the physician’s work e-mail address.
The hospital contended the emails were not made in confidence, since its policy provided that e-mails sent using the server should be for business purposes only and it “reserve(d) the right to access and disclose such (e-mails) … at any time without prior notice.”
The hospital admitted, however, that the plaintiff’s e-mail was not monitored.
The plaintiff asserted that, pursuant to CPLR 4548, the e-mails were made in confidence.
CPLR 4548 states: “No communication privileged under this article shall lose its privileged character for the sole reason that it is communicated by electronic means or because persons necessary for the delivery or facilitation of such electronic communication may have access to the content of the communication.”
As explained by Vincent Alexander in the Practice Commentaries following this CPLR provision, “in effect, [it] constitutes a legislative finding that when parties to a privileged relationship communicate by e-mail, they have a reasonable expectation of privacy.”
The issue of whether e-mails of this nature were privileged was of first impression for New York State courts, so the court relied heavily on In re: Asia Global Crossing Ltd., 322 BR 247 (SDNY 2005), a case with a similar fact pattern that addressed the issue of whether employee emails sent to counsel using an employer server were privileged.
In Asia Global, the court set forth four factors to be used in determining whether an employee has an expectation of privacy in his computer: 1) whether the employer’s policies ban personal and other objectionable use of its computers; 2) whether the employer monitors the use of the employee’s computer or email; 3) whether third parties have access to the computer or emails and 4) whether the employer notified the employee or the employee was aware of the use and monitoring policies.
The Scott court applied these factors and concluded the emails were not made in confidence. The court recognized CPLR 4548 trumps the third factor regarding third party access to the e-mails, but the hospital prevailed as to the other factors since an e-mail policy was in place, the hospital retained the right to monitor e-mails and the plaintiff, as a hospital administrator, had both actual and constructive notice that the hospital might monitor e-mail correspondence.
I daresay the court got it wrong.
On its face, CPLR 4548 specifically negates both the second and third Asia Global factors regarding the setting in which communication occurs because privilege does not disappear simply because a third party “may have access to … [a] communication.”
That leaves only the first and fourth factors in play, which revolve around divining the plaintiff’s subjective expectation of confidentiality.
As explained in Curto v. Medical World Communications Inc., 2006 WL 1318387 (EDNY), a case that discussed the Asia Global decision, one important factor to consider in determining the em-ployee’s expectation is the actual practices of the employer: “(I)n light of the few instances of actual monitoring … together with the fact that many … employees had personal e-mail accounts at work, employees were lulled in a ‘false sense of security’ regarding their personal use of company-owned computers,” Id. at 8.
In Scott, the court likened the effect of the hospital’s email policy to “hav(ing) the employer look … over your shoulder each time you send an e-mail,” Scott, supra. at 3.
However, given the hospital’s actual practice, which was to refrain from monitoring, e-mails sent by the plaintiff were more akin to sending an e-mail after hours, when no one was around, so as to avoid the remote possibility your employer might view it on the screen.
This argument is buttressed further by the fact that the plaintiff, as a hospital administrator, likely was aware of the hospital’s actual practices regarding e-mail monitoring.
The court’s holding in this case ignores the legislative intent behind the enactment of CPLR 4548 and the legitimate expectation of confidentiality the plaintiff had regarding e-mail communication with his attorneys. Any other conclusion fundamentally weakens the attorney client privilege by eroding the trust that serves as the very foundation of an open, honest and successful attorney-client relationship.
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