In our busy lives it’s not uncommon for many employees to send personal emails from their business email account. However, there can be unintended repercussions for both employers and employee in a litigation setting. New York law establishes a variety of “privileges,” which protect parties from being compelled to disclose certain broad categories of communications. Those privileges can be easily lost because of an employer’s email policy, thereby allowing an opposing party to get such emails as evidence.
Two well-known privileges are the attorney-client privilege and spousal privilege. Both privileges are based upon the fundamental idea that the person communicating had a reasonable expectation the communications would be private and confidential. Both privileges are eliminated if a third party, other than the attorney or spouse, is present during the communication. This concept is crucial in the context of a personal email sent via a business account as seen in a recent court decision of the New York Appellate Division First Department. The court underscored how those privileges can be eliminated because there is no reasonable expectation of privacy.
The case of Peerenboom v. Marvel Entertainment, LLC, concerns efforts by a party suing the CEO of Marvel for defamation to recover emails sent by the CEO using his Marvel email address. The CEO objected to the subpoenas, asserting that the communications sought were protected by a variety of privileges and protections, including attorney-client and spousal privilege. In deciding the case, the court looked at various factors to determine whether the CEO had a reasonable expectation of privacy in his emails. These factors (which had previously been established by the United States Bankruptcy Court for the Southern District of New York) included:
- Whether Marvel had an email policy which bans personal use;
- Whether Marvel monitored employee email use;
- Whether Marvel had the right to access employee emails; and
- Whether employees were aware of or notified of the policy.
The Appellate Court found that, given the circumstances of Marvel’s IT policy, the CEO had no expectation of confidentiality in communications with his spouse, and any spousal privilege was waived. The same was true of the attorney-client privilege. With regard to a third privilege, known as the attorney work product privilege, the Court found that mere use of a professional email address did not automatically constitute a waiver of privilege, absent evidence of actual disclosure to any third party or that Marvel actually viewed the emails.
For employers, the important takeaway is to make sure they have a clearly defined and communicated email policy which preserves the company’s right to monitor emails and prohibits personal use. Such a policy helps ensure they can access emails when needed in litigation. Employers should consult with an attorney to draft or review their email policy.
Employees should take care in deciding when to use personal and professional emails, especially when communicating regarding matters which they might wish to remain confidential. If a party is attempting to subpoena personal emails sent from a business account, employees should speak to a qualified attorney about possible grounds for challenging the subpoena.
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This post does not constitute legal advice or establish an attorney-client relationship.