There are now several decisions determining whether employees can retain attorney-client privilege for e-mails sent to their lawyers using their employer-provided e-mail addresses and computers — reaching apparently inconsistent conclusions. This article compares and seeks to reconcile the cases, and to assist lawyers in advising clients on how to avoid the risks that such communications pose. The first of these cases, Scott v. Beth Israel Medical Center Inc., 2007 WL 3053351 (N.Y. Sup. Oct. 17, 2007), was previously featured in an article in this column (“Abusive Litigation Tactics and Loss of Privilege,” March 3, 2008), but is revisited here because a New Jersey court recently reached a diametrically opposite conclusion on quite similar facts, in Stengart v. Loving Care Agency Inc., 973 A.2d 390 (N.J. Super. A.D. July 29, 2009). The article also reviews other recent decisions in the same general subject area.
Scott v. Beth Israel involved a breach of contract action arising from the defendant’s termination of the plaintiff doctor’s employment, in the course of which certain e-mails between the plaintiff and his lawyer came into the possession of the defendant, because they had been transmitted utilizing the defendant’s e-mail system.
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