Court Holds Attorney-Client Privilege Doesn’t Cover Messages Sent From Client’s Work E-Mail

A recent Supreme Court of New York decision has held that e-mails between an employee and his attorneys sent using the employer's e-mail system are not privileged. The decision in Scott v. Beth Israel Medical Center, Inc. 2007 N.Y. Misc. LEXIS 7114 (Oct. 17, 2007), may, if left standing, call into serious question the wisdom of using a healthcare employer's e-mail system by employees seeking to send privileged or otherwise sensitive communications.

Scott Decision

The Scott decision arose from an underlying breach of contract dispute. The plaintiff, Dr. W. Norman Scott (physician for the New York Knicks until 2005), had been named chairman of the hospital's Department of Orthopedics in 1998. He was terminated from his employment with Beth Israel (BI) in 2004. Dr. Scott's contract stated that he was entitled to $14 million in severance pay if his termination was without cause. BI refused, contending that he was, in fact, terminated for cause. Dr. Scott brought suit alleging breach of contract. The claim was dismissed by New York State Supreme Court Justice Charles W. Ramos, but that decision was reversed by the Appellate Division (New York's intermediate appellate court).

During the course of discovery, BI's counsel advised Dr. Scott's attorney that BI had located e-mail communications on the BI e-mail system between Dr. Scott and his attorneys. BI's counsel further stated that no one at BI had read the e-mails but, nevertheless, any potential privilege in those communications had been waived by plaintiff's use of BI's system. BI's e-mail policy stated that employees had no personal privacy rights in material created, received, saved or sent using BI's e-mail system, and that BI reserved the right to access and disclose such material at any time. Plaintiff's attorneys moved for a protective order seeking return of the e-mails to counsel.

The court agreed with BI. The court began by looking at the New York privilege law: "The test for privilege is whether the client communicates with attorney, in confidence, for the purpose of obtaining legal advice." The BI e-mail policy language that the system was to be used for business purposes only and, more significantly, that "employees have no personal privacy right in any material sent, created, received, sent or saved" in the system and that the "Medical Center reserves the right to access and disclose such material. . ." led Justice Ramos to conclude that that the effect of the BI e-mail policy...