New York Court: Attorney-Client Privilege is Lost if Emails Go Through Employer’s Server

In a recent decision in Peerenboom v. Marvel Entertainment, a New York court ruled that email communications between a client and his personal attorney are not privileged – and are subject to full disclosure – if they are transmitted through the client’s employer’s email system that is “monitored.”

The case arose out of a subpoena to Marvel seeking personal emails of its CEO, Perlmutter.  Perlmutter objected on the grounds that some of the emails were between him and his personal attorney and were protected by the attorney-client privilege.  The plaintiff contended that under Marvel’s policy, all emails sent through its server by employees were subject to being monitored, and, for that reason, the attorney-client privilege had been waived.  The court agreed and ordered all emails produced.

Two general principles of U.S. law of privilege are important here.  One is that, unlike in some other countries, in the U.S. the attorney-client privilege belongs entirely to the client – not the attorney.  Second, the privilege is generally deemed waived if the communications at issue are disclosed by the client to third parties.

The court considered four factors in deciding whether the privilege had been waived:  Whether (1) the employer maintains a policy banning personal emails; (2) the employer monitors the use of the employee’s computer or email; (3) third parties have a right of access to the computer or emails; and (4) the employer notified the employee, or the employee was aware, of the use and monitoring policies.

Notably, the four factors can be satisfied without any evidence that the emails were actually viewed or read by a third party.  There was no indication in this case that any of the emails were read by Marvel’s “monitors.”

The court deemed all four factors satisfied and ruled that the emails in question had conseqeuntly lost their privileged status.

The court distinguished emails sent through the employer’s system from those sent through the employee’s personal email account: “The use of one’s own personal home computer to communicate with an attorney on a private, unencrypted email account does not vitiate the attorney-client privilege.”

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