From the American Bar Association Tech Show Blog:

On October 17th, 2007, the Supreme Court of New York County ruled that a doctor’s e-mails, sent on his employer hospital’s system, were not privileged.

The hospital located the e-mails during discovery, did not read them, and notified the doctor of their existence. The doctor moved to suppress the e-mails, claiming they were privileged.

The hospital claimed the doctor waived his right to privilege because hospital policy prohibited personal e-mailing while on the job, and the policy included the right to access the e-mails without notice. The doctor argued that he was protected by New York Civil Practice Law 4548, which states that no communication shall lose its privileged character just because it is transmitted electronically.

The court applied a four-part test used in a bankruptcy case with similar issues to determine whether the attorney-client privilege would apply to personal e-mails exchanged by an employee with an attorney over a company-controlled communications system. The test states the privilege would not apply where:

1. the company maintains a policy that bans personal or other objectionable use; 
2. the company monitors employee use of computers or e-mail; 
3. third parties other than the employee have a right to access the computer and the employee's e-mail; and 
4. the company notifies the employee of its use and monitoring policies.

The court concluded that the hospital had met all four requirements in this case, and denied the doctor’s motion to suppress.

Read the full opinion....