Company E-mail Policies: A Litigation Advantage?

Scott v. Beth Israel Medical Center, Inc., et al.

Case: Scott v. Beth Israel Med. Ctr. Inc.
Status: Ready, Aim, Fire


Plaintiff Scott used his defendant-employer's computer system and e-mail server for correspondence with his attorney regarding litigation against Beth Israel.  The e-mails were discovered by Beth Israel during discovery. Scott moved for the return of the documents, arguing that the e-mails were protected by the attorney-client privilege and work-product doctrine.  The Court determined that any privilege had been waived due to the existence (and Scott's knowledge) of Beth Israel's e-mail policy.  As a result, Scott had no reasonable expectation of privacy and his motion for a protective order was denied.  Beth Israel was able to retain and read the communications between the plaintiff and his attorney.

BuLITS Points

  • Policy specifics often determine whether employee's should (or should not) have a reasonable of privacy for e-mails sent from company e-mail accounts.
  • Relevant questions include: What does the policy say? Are computer and e-mail systems for "business use" only? Does the policy set out who has property rights to the information and documents created by such systems? Does the policy reserve the right to access and disclose material created, sent or received using your computer systems? Is the policy widely distributed? Do employees sign acknowledgements for receipt of the policy? Is the policy available in company employee handbooks and intranet sites?
  • Attorney e-mails that contain confidentiality notices may not be enough to overcome a company's e-mail policy where the company has reserved the right to review all e-mail.

And Remember

While your company's "for business use only" e-mail policy may seem like just another administrative decree, it could prove itself to be an advantage in litigation because you never know just when you'll need to be locked and loaded.

See Scott v. Beth Israel Med. Ctr. Inc. et al., 17 Misc.3d 934, 847 N.Y.S.2d 436 (N.Y. Sup. Ct. 2007).

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