As indicated in several Privilege Points, courts have somewhat surprisingly taken different positions on the privilege protection available for an employee’s communications with a personal lawyer that the employee conducts on a company-owned computer.
In Scott v. Beth Israel Medical Center Inc., 17 Misc. 3d 934 (N.Y. Sup. Ct. 2007), a New York court dealt with this issue in a high-stakes case. Dr. Scott (represented by the well-known law firm of Paul Weiss) was litigating against Beth Israel over his $14 million severance package. Beth Israel found on its computer system e-mails between Dr. Scott and Paul Weiss lawyers. Paul Weiss argued that the e-mails remained privileged because (among other things): (1) Dr. Scott had not signed the hospital’s policy statement prohibiting doctors’ personal use of the hospital’s computer; (2) the hospital never monitored the doctors’ e-mails, although it retained the right to do so; and (3) Paul Weiss’s e-mails each included a disclaimer indicating that the e-mail “may” contain privileged communications and should not be reviewed by anyone other than the intended recipient. Id. at 937. The court rejected all of Dr. Scott’s arguments, holding that: (1) Dr. Scott had “constructive knowledge of the policy” because he “required newly hired doctors under his supervision to acknowledge in writing that they were aware of the policy” (id. at 942); (2) it was unnecessary for the hospital to have actually monitored the doctors’ e-mails; and (3) Paul Weiss’s disclaimer “cannot create a right to confidentiality out of whole cloth” (explaining that “when client confidences are at risk, [Paul Weiss’s] pro forma notice at the end of the e-mail is insufficient and not a reasonable precaution to protect its clients”). Id. at 943.
The fact that a large law firm would find itself in this position while representing a prominent doctor in a $14 million lawsuit should remind all lawyers to pay attention to this issue.