Employee E-Mails to Personal Attorney Using Company E-Mail Systems Are Not Privileged

Employee messages to his attorney sent over the employer’s e-mail system, a practice against company policy, are not protected by attorney-client privilege or the work product doctrine under New York state law.  In denying the employee’s motion for a protective order, the court in Scott v. Beth Israel Medical Center (“BIMC”) precluded the employer from viewing Scott’s e-mails to his attorney from his BIMC account. In finding that the employee waived privilege, the court concluded that BIMC had an e-mail policy banning personal use and that Scott had constructive notice that BIMC had the right to monitor e-mail communications over its network. The court also rejected Scott’s work product doctrine argument based upon his attorney’s confidentiality notice e-mail footer, holding that the attorney’s confidentiality notice at the end of e-mails was “insufficient and not a reasonable precaution” to create a qualified privilege against disclosure.

See Scott v. Beth Israel Medical Center Inc., No. 602736/06, 2007 N.Y. Misc. LEXIS 7114 (N.Y. Sup. Ct. N.Y. Cty Oct. 17, 2007).