SUPREME COURT, NEW YORK COUNTY, DENIES MOTION FOR A PROTECTIVE ORDER FOR EMAIL COMMUNICATIONS BETWEEN EMPLOYEES AND THEIR ATTORNEY MADE OVER EMPLOYERS’ EMAIL SYSTEM

• Posted on: Feb 21 2020

People text and e-mail all day and every day.  When communicating from a personal smart phone, a privately-owned personal computer or over a personal e-mail network, concerns over privacy are minimized.  However, folks do a fair share of their personal business while at work — often utilizing their work e-mail systems, smart phones and personal computers for same.  While convenient, such practices could present problems as an employer may be permitted to have access to information transmitted over the employers email systems and/or contained on a company issued smart phone or computer, and such access may operate to waive certain privileges otherwise afforded by law.

Such issues were raised in In re: Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005).   In Asia, the “main question raised by the current motion is whether an employee’s use of the company e-mail system to communicate with his personal attorney destroys the attorney-client, work product or joint defense privileges in the e-mails where the employee and his former employer’s trustee have become adversaries.”  Asia, 322 B.R. at 251.  

In describing the attorney-client privilege (under Federal law), the Asia Court stated that “a client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, between the client and the client’s lawyer (or certain representatives of the client and the lawyer).”  Asia, 322 B.R. at 255 (citations, internal quotation marks and brackets omitted).  “The privilege must be narrowly construed. It stands in derogation of the public’s right to every man’s evidence, and as an obstacle to the investigation of the truth.”  Asia, 322 B.R. at 255 (citations and internal quotation marks omitted).  Citing CPLR § 4548, the Asia Court noted that “a privileged communication does not lose its privileged character for the sole reason that it was sent by e-mail or because persons necessary for the delivery or facilitation of the e-mail may have access to its content.”  Asia, 322 B.R. at 256.  

The Asia Court further noted that typically “e-mail communications between agents of a corporation regarding the corporation’s business are protected from disclosure to third parties outside the corporation [because i]t is reasonable in those circumstances for the sender to assume that the recipient will hold the communication in confidence.”  Asia, 322 B.R. at 256 (citation omitted).  In Asia, however, the individuals asserting privilege “used the employer’s e-mail system to communicate with their personal attorney, and the communications apparently concerned actual or potential disputes with the employer, the owner of the e-mail system.”  Asia, 322 B.R. at 256.

After generally discussing the right of privacy and the expectation of privacy in the workplace, the Asia Court set forth the following factors to consider when analyzing an employee’s expectation of privacy in his computer files and e-mail:

(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee’s computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?

Asia, 322 B.R. at 257 (citations and footnote omitted).  The Asia Court assumed that the e-mails in question were privileged and that the employees intended them to be confidential and, therefore, “the question of privilege comes down to whether the intent to communicate in confidence was objectively reasonable.”  Asia, 322 B.R. at 258.  The Asia Court determined that the employer had access to the e-mails because they were on its server.  Asia, 322 B.R. at 259.  However, the Court held that because of a “disputed or incomplete factual record’’ the Court was prevented from deciding “as a matter of law that a waiver of any privilege occurred.”  Asia, 322 B.R. at 251.  Among other things, the Court could not determine if employer sufficiently put employees on notice that they could not use the company e-mail systems for personal use and/or that the employer was monitoring the e-mail system.  Asia, 322 B.R. at 259 – 261.

On February 11, 2020, the Supreme Court of the State of New York, New York County, decided Rad v. IAC/INTERACTIVECORP, in which the court was faced with issues like those addressed by the Asia Court.  The plaintiffs in Rad were executives of Tinder.  Some of the plaintiffs and a non-party, moved for a protective order “to prevent the disclosure of their allegedly privileged and confidential communications with their personal attorneys …, which they transmitted on Tinder email systems while they were employed by Tinder.”  “Because the allegedly privileged communications reside on Defendants’ electronic communications systems, Defendants are in possession of them, and Movants move for an order clawing them back and preventing Defendants from using them in litigation.”

The Rad court stated that “[i]n Peerenboom v. Marvel Entertainment, LLC, the Appellate Division, First Department, endorsed application of the four factors set forth in In Re Asia Global Crossing, Ltd, [supra] to determine whether a party waives attorney-client privilege by sending the communications through its employer’s email system.”  The Rad court then analyzed the relevant electronic communication policies of the defendants and found that the policies “strictly limited” employees’ personal use of the email system, advised that  employees “should have no expectation of privacy” and that the employers “had the right to monitor” its employees’ use of the systems. Such admonitions were also incorporated into the employee handbook.

Applying the four factors in Asia, the Rad court concluded that the movants “could not have had a reasonable expectation that their communications with their personal attorneys, sent and received on Defendants’ electronic communications systems, would be confidential.”  Thus, the court denied the motion for a protective order.

TAKEAWAY

Employees should be mindful of employer electronic communication policies if they intend to use employer e-mail systems for personal use.  A better practice, however, would be to avoid using such systems for personal use for communications of any sensitivity.