If the Employer Is Watching, Is the Privilege Gone?
Does the medium of an employer-provided network which is, or can be, monitored by the employer strip the cloak of privilege from an employee's communication with his attorney?Yes, according to a New York court in Scott v. Beth Israel Med. Ctr., Inc.. 2007 NY Slip Op 27429 (decided October 17, 2007). The court ruled that the employee in this case did not have a reasonable expectation of privacy while sending e-mails to his attorney, in that the employer's policy said so in explicit terms, and also advised that communications over the network could be accessed and/or monitored.
Dr. Scott, the plaintiff-physician, brought forth a motion requiring the defendant-hospital (“BI”), to return all e-mail correspondence between plaintiff and his attorney. This breach of contract suit arose out of Mr. Scott’s termination and whether he was owed $14 million in severance pay which would be due if he was terminated without cause.
In the course of preparing for litigation Mr. Scott sent several e-mails to his attorney from his workstation at the hospital. These same e-mails were obtained by his employer from his employer’s e-mail system during e-mail collection to prepare for discovery. The defendant claimed that any and all privileges which were attached to the e-mails had been waived by use of the system in conjunction with notice of their e-mail policy. Dr. Scott claimed that he had a reasonable expectation of privacy in his e-mail and that both the attorney-client privilege and work-product doctrine applied.
Being an issue of first blush in the New York, the court leaned heavily on the existence and wording of BI’s e-mail policy. The policy contained such language as “All Medical Center….electronic mail systems….should be used for business purposes only.” and “All information and documents created, received, saved or sent on the Medical Center's computer or communications systems are property of the Medical Center. Employees have no personal privacy right in any material created, received, saved or sent using Medical Center communication or computer systems. The Medical Center reserves the right to access and disclose such material at any time without prior notice.” The court held that these provisions extinguished any expectation of privacy Dr. Scott may have , even his communications with his attorney. Justice Charles Ramos likened the policy to someone sending “confidential e-mail from her workplace with a business associate looking over her shoulder as she types.”
The court disposed of the attorney work-product claim with similar short shrift, holding that the e-mails were not protected by the doctrine as Dr. Scott and his counsel, by communicating over BI's network, were “so careless as to suggest that [they] [were] not concerned with the protection of the asserted privilege."
As old and new electronic communications become more ubiquitous over employer networks, how can employees and employers, respectively, maintain privacy of communications and avoid being in the position of accessing private or privileged communications which may, in some states like New York and Alabama, infringe upon ethical mandates? Robert Frost famously wrote that good fences make good neighbors. The Scott case highlights the enduring nature of that admonition, pointing out the benefit of strong internal policies regulating computer usage while, at the same time, setting forth the need for employees to demonstrate understanding of those policies by signing acknowledgments of those boundaries.