One would initially think that a communication between client and attorney on an issue arising from the attorney’s representation of the client would be privileged. In this case, recently decided by Justice Charles E. Ramos of Supreme Court, New York County, the privilege was waived.
"On August 10, 2005, BI’s counsel, Marvin Wexler of Kornstein Veisz Wexler & Pollard, LLP ("KVW"), sent a letter to plaintiff’s counsel, Stuart Kagen of Paul, Weiss Rifkind Wharton & Garrison LLP ("PW"), asserting that BI was in possession of e-mail correspondence between Dr. Scott and PW pertaining to Dr. Scott’s dispute with BI, as well as e-mails written between Dr. Scott and Cohen Lans LLP regarding a separate dispute. The letter further stated that although no one at BI had read the e-mails yet, BI believed that any potential privilege attached to the communications had been waived by use of BI’s e-mail system.
Mr. Kagen responded on August 15, 2005, informing Mr. Wexler that the documents are privileged communications belonging to Dr. Scott for which there had been no waiver of privilege and requesting the immediate return of the e-mails to Dr. Scott.
When BI refused to return the documents, the parties called Andrea Masley, the Judge’s Court Attorney, who instructed BI to provide copies of the e-mails to Dr. Scott, place copies of [*2]the documents into a sealed envelope and bar anyone from reviewing the e-mails pending a resolution by the Court. Thereafter, Dr. Scott filed this motion for a protective order seeking the return of the documents.[FN4]
Dr. Scott argues that the e-mails are privileged under both the attorney client privilege and work product doctrine. BI counters that the e-mails were never protected by the attorney client privilege because Dr. Scott could not have made the communication in confidence when using BI’s e-mail system in violation of BI’s e-mail policy. BI also argues that both privileges were waived by Dr. Scott’s use of BI’s e-mail system.
The final factor is whether Dr. Scott had notice of the policy. Dr. Scott had both actual and constructive knowledge of the policy. BI disseminated its policy regarding the ownership of e-mail on its server to each employee in 2002, including Dr. Scott and provided internet notice. See Garrity v John Hancock Mutual Life Ins. Co., No. Civ Action 00-12143-RWZ, 2002 WL 974676, at 1 (D Mass, 2002)(Company e-mail policy precluded reasonable expectation of privacy despite employee’s claim that policy was hard to find on company intranet).
Dr. Scott’s effort to maintain that he was unaware of the BI e-mail policy barring personal use is rejected. As an administrator, Dr. Scott had constructive knowledge of the policy. Perez Moya v City of New York (9 Misc 3d 332 Sup Ct, Kings County 2005)(Superintendent’s knowledge of the residency of child imputed to the City); Polidori v Societe Generale Group., 236 NYLJ 112 (Sup Ct NY County 2006) (Knowledge of sexual harassment will be imputed to employer if supervisor of a sufficiently high level is aware of the harassment), affd, 39 AD3d 404 (1st Dept 2007). He required newly hired doctors under his supervision to acknowledge in writing that they were aware of the policy. Under these circumstances, Dr. Scott is charged with knowledge of the BI e-mail policy.
Alternatively, Dr. Scott argues the e-mails are privileged work product. The work product doctrine provides a qualified privilege against disclosure for materials prepared by an attorney in anticipation of litigation. CPLR 3101(c). The issue is whether the work product privilege was waived. Under New York State law, work product is waived when it is disclosed in a manner that materially increases the likelihood that an adversary will obtain the information. See Bluebird Partners, L.P. v First Fidelity Bank, N.A., New Jersey, 248 AD2d 219, 225 (1st Dept. 1998). While an inadvertent production of a privileged work product document generally does not waive the applicable privilege, there is an exception to that rule if the producing party’s conduct "was so careless as to suggest that it was not concerned with [the] protection of [the] asserted privilege." Critical to this determination is the reasonableness of the precautions taken to prevent inadvertent disclosure. SEC v Cassano, 189 FRD 83, 85 n.4 (SDNY 1999). "