E-Mail and the Attorney-Client Privilege

The first part of this article discussed various New York cases ' some involving matrimonial issues ' in which courts were asked to grapple with this question: May e-mailed communications between litigants and their attorneys be admitted in court as evidence? All those cases involved e-mails sent to and from home computers, and the communications involved usually merited protection so long as minimal protections against dissemination were in place. In such cases, courts found that there was a reasonable expectation of privacy, so the attorney/client privilege against disclosure applied.

The Work Computer

The confidentiality of e-mails between a client and his or her attorney that are sent and received by the client through use of the client's employer's e-mail system was addressed in Scott v. Beth Israel Medical Ctr., 17 Misc.3d 934 (Sup. Ct., N.Y. Cty. 2007). In that case, plaintiff W. Norman Scott sued the hospital for breach of contract. In the course of the litigation, the hospital's counsel advised Scott's counsel that the hospital was in possession of Scott's e-mails with his attorney ' they had been transmitted over the hospital's e-mail system utilizing Scott's employee e-mail
address.

Justice Charles E. Ramos, in a thorough opinion, ruled that the communications could not be deemed confidential because they were not made in confidence. This conclusion was required because Scott used a hospital computer to send the e-mails over the hospital's e-mail system even though: 1) he had been informed of the hospital's policy that its computers were not to be used for personal use; and 2) he was informed that the hospital would monitor its employee's computer or e-mails. In these circumstances, the use of the employer's system is similar to a situation in which the employer is looking over the employee's shoulder as he types, a circumstance clearly negating confidentiality. Scott, 17 Misc.3d at 937-938.

Scott emphasizes that its holding is predicated upon the employer notifying the employee of its policy that the company's e-mail account is for company business, that e-mails sent over it are not private, and that the company will randomly monitor its technology resource to ensure compliance with that policy. Consistent with Scott, courts in other states have held that where the employer does not give the employee sufficient notice of its policy, the mere existence of the policy will not defeat the confidentiality of e-mail communications otherwise privileged. See Holmes v. Petrovich Development Co., 2011 WL 117230 *14-17 (Cal. App. 3rd Dist.); Convertino v. U.S. Dept. of Justice, 674 F.Supp.2d 97, 110 (D.C. 2009); Mason v. ILS Technologies LLC, 2008 WL 731557 (DNC). It should also be noted that most courts hold that an otherwise privileged e-mail will not lose its privileged status when it is sent over the client's personal web-based e-mail account accessed from the client's employer's computer, provided the use of such an account is not covered by the employer's policy, a holding that is also consistent with Scott. (See Steingart v. Loving Care Agenecy Inc., 201 N.J. 300 (2010); Curto v. Medical World Communications, 2006 WL 1318387 (EDNY).)

Waiver

CPLR 4503(a) expressly recognizes that the client may waive the attorney-client privilege. Waiver of the privilege can be by express disclosure (See Martin, supra, ' 5.1.5; Prince, supra, ' 5-209) or by conduct, the latter including a failure to take reasonable steps to ensure the continuing confidentiality of the communication, which failure allows that communication to be discovered. See In re Horowitz, 482 F.2d 72, 82 (2d Cir. 1973) (“It is not asking too much to insist that if a client wishes to preserve the privilege ' he must take some affirmative action to preserve confidentiality”); Bower v. Weisman, 669 F.Supp. 602, 605 (SDNY 1987); Rice, Attorney Client Privilege in the United States ' 9:24 (2d ed) (collecting cases).

A waiver issue was also present in Parnes. The wife had discovered a page from a five-page e-mail on the desk in the marital residence, which had been left lying there by the husband. The 3rd Department held the husband waived the privilege as to that one page because his conduct evidenced a failure to take reasonable steps to maintain its confidentiality. Parnes, 80 A.D.3d at 950-951. (No argument was raised concerning whether the waiver of the privilege as to that one page resulted in a waiver of the remaining four pages. While New York law is not well-developed concerning whether there is such a waiver in these circumstances ' e.g., subject matter waiver ' a recent decision, Charter One Bank F.C.B. v. Midtown Rochester LLC, 191 Misc.2d 154 (Sup. Ct. Monroe Co. 2002), supports the conclusion that there would be no waiver as to the rest of the e-mail.) The teaching of Parnes on this issue is rather obvious: Carelessness in the handling of an otherwise privileged e-mail communication ' such as by printing it out and leaving the printed copy lying around or leaving it on the computer screen and not logging out ' will effect a waiver of the privilege.

Michael J. Hutter is a professor of law at Albany Law School, where he teaches Evidence and New York Practice, and is special counsel to Powers & Santola. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.

The first part of this article discussed various New York cases ' some involving matrimonial issues ' in which courts were asked to grapple with this question: May e-mailed communications between litigants and their attorneys be admitted in court as evidence? All those cases involved e-mails sent to and from home computers, and the communications involved usually merited protection so long as minimal protections against dissemination were in place. In such cases, courts found that there was a reasonable expectation of privacy, so the attorney/client privilege against disclosure applied.

The Work Computer

The confidentiality of e-mails between a client and his or her attorney that are sent and received by the client through use of the client's employer's e-mail system was addressed in Scott v. Beth Israel Medical Ctr. , 17 Misc.3d 934 (Sup. Ct., N.Y. Cty. 2007). In that case, plaintiff W. Norman Scott sued the hospital for breach of contract. In the course of the litigation, the hospital's counsel advised Scott's counsel that the hospital was in possession of Scott's e-mails with his attorney ' they had been transmitted over the hospital's e-mail system utilizing Scott's employee e-mail
address.

Justice Charles E. Ramos, in a thorough opinion, ruled that the communications could not be deemed confidential because they were not made in confidence. This conclusion was required because Scott used a hospital computer to send the e-mails over the hospital's e-mail system even though: 1) he had been informed of the hospital's policy that its computers were not to be used for personal use; and 2) he was informed that the hospital would monitor its employee's computer or e-mails. In these circumstances, the use of the employer's system is similar to a situation in which the employer is looking over the employee's shoulder as he types, a circumstance clearly negating confidentiality. Scott, 17 Misc.3d at 937-938.

Scott emphasizes that its holding is predicated upon the employer notifying the employee of its policy that the company's e-mail account is for company business, that e-mails sent over it are not private, and that the company will randomly monitor its technology resource to ensure compliance with that policy. Consistent with Scott, courts in other states have held that where the employer does not give the employee sufficient notice of its policy, the mere existence of the policy will not defeat the confidentiality of e-mail communications otherwise privileged. See Holmes v. Petrovich Development Co., 2011 WL 117230 *14-17 (Cal. App. 3rd Dist.); Convertino v. U.S. Dept. of Justice , 674 F.Supp.2d 97, 110 (D.C. 2009); Mason v. ILS Technologies LLC, 2008 WL 731557 (DNC). It should also be noted that most courts hold that an otherwise privileged e-mail will not lose its privileged status when it is sent over the client's personal web-based e-mail account accessed from the client's employer's computer, provided the use of such an account is not covered by the employer's policy, a holding that is also consistent with Scott . ( See Steingart v. Loving Care Agenecy Inc. , 201 N.J. 300 (2010); Curto v. Medical World Communications, 2006 WL 1318387 (EDNY).)

Waiver

CPLR 4503(a) expressly recognizes that the client may waive the attorney-client privilege. Waiver of the privilege can be by express disclosure (See Martin, supra, ' 5.1.5; Prince, supra, ' 5-209) or by conduct, the latter including a failure to take reasonable steps to ensure the continuing confidentiality of the communication, which failure allows that communication to be discovered. See In re Horowitz, 482 F.2d 72, 82 (2d Cir. 1973) (“It is not asking too much to insist that if a client wishes to preserve the privilege ' he must take some affirmative action to preserve confidentiality”); Bower v. Weisman , 669 F.Supp. 602, 605 (SDNY 1987); Rice, Attorney Client Privilege in the United States ' 9:24 (2d ed) (collecting cases).

A waiver issue was also present in Parnes. The wife had discovered a page from a five-page e-mail on the desk in the marital residence, which had been left lying there by the husband. The 3rd Department held the husband waived the privilege as to that one page because his conduct evidenced a failure to take reasonable steps to maintain its confidentiality. Parnes, 80 A.D.3d at 950-951. (No argument was raised concerning whether the waiver of the privilege as to that one page resulted in a waiver of the remaining four pages. While New York law is not well-developed concerning whether there is such a waiver in these circumstances ' e.g. , subject matter waiver ' a recent decision, Charter One Bank F.C.B. v. Midtown Rochester LLC , 191 Misc.2d 154 (Sup. Ct. Monroe Co. 2002), supports the conclusion that there would be no waiver as to the rest of the e-mail.) The teaching of Parnes on this issue is rather obvious: Carelessness in the handling of an otherwise privileged e-mail communication ' such as by printing it out and leaving the printed copy lying around or leaving it on the computer screen and not logging out ' will effect a waiver of the privilege.

Michael J. Hutter is a professor of law at Albany Law School, where he teaches Evidence and New York Practice, and is special counsel to Powers & Santola. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.