Attorney’s Pro Forma Notices at End of E-mails Not Worth the Bytes They’re Stored In (Beware the Employer’s E-mail Server)

It has become commonplace for attorneys and others sending faxes and e-mails to include at the end of such communications standard language stating that the contents thereof are confidential and privileged. Such standard language should provide no comfort, however, for senders and receivers of e-mails that use an employer’s server.

A decision by Hon. Charles E. Ramos of the Supreme Court, New York County, holds that a pro forma notice at the end of an e-mail message did not inure the attorney-client privilege to the e-mail when an employer’s e-mail server is used. The Court was particularly persuaded by the fact that the employer had promulgated a Human Resources Policy and Procedure Manual that included policies requiring that its electronic mail system (as well as the Internet and other technology systems)be used for business purposes only, that employees using the e-mail system had no personal privacy right in any material using the e-mail system, and that the employer reserves the right to access and disclose such material at any time without prior notice.

The case of Scott v, Beth Israel Medical Center Inc., — N.Y.S.2d —-, 2007 WL 3053351 (October 17, 2007), involves a suit by a former employee of the defendant hospital alleging that he was terminated without cause, thus entitling him under his contract to $14,000,000.00 in severance pay.

The motion at issue was brought on by the plaintiff (the former employee) seeking return of all e-mail correspondence between him and his attorneys. All of the attorney’s e-mails to the plaintiff included the following notice: This message is intended only for the use of the Addressee and may contain information that is privileged and confidential. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please erase all copies of the message and its attachments and notify us immediately.

The plaintiff relied upon CPLR 4548, which states, no communication under this article shall lose its privileged character for the sole reason that it is communicated by electronic means or because persons necessary for the delivery or facilitation of such electronic communication may have access to the content of the communication.

Justice Ramos rejected this argument, reviewing some of the legislative history of CPLR 4548 and reasoning that the hospital’s policy of no personal use combined with a policy allowing for employer monitoring, and the employee’s knowledge of these two policies, diminishes any expectation of confidentiality. It has recently been reported that the plaintiff will not appeal Justice Ramos’ decision.

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