Question

Busines LAW - Privacy and Personal Rights (ANSWER IRAC FORMAT)

Beth IsraelMedicalCenter (BI) email policy stated:

All information and documents created, received, saved or sent on the MedicalCenter’s computer of communications systems are the property of the MedicalCenter.

Employees have no personal privacy right on any material created, received, saved or sent using Medical Center communication or computer systems.  The MedicalCenterreserves the right to access and disclose such material at any time without prior notice.

Dr. Norman Scott was head of the orthopedics department at BI.  His contract with the hospital provided for $14 million in severance pay if he was fired without cause.  BI did fire Scott and the question was whether it was for cause or not.  In preparation for a lawsuit against BI, Scott used the hospital’s computer system to send emails to his lawyer.  Each of these emails 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 copes of the message and its attachments and notify us immediately.

      BI Obtained copies of all of Scott’s emails.  It notified him that it had copies of the emails to his lawyer.  No one at BI had read the emails, but they intended to do so.

      Communications between lawyers and their clients are generally protected, but a client waives that privilege if he publicly discloses the information.  When Scott requested that the emails be returned to him unread, BI refused. Scott filed a motion seeking the return of the documents.

Question:  Scott was emailing his lawyer, so the content of the emails should be privileged by the attorney-client privilege.  Should that trump the employer’s right to monitor his email? (ANSWER IRAC FORMAT )

Answer 1

Issue: Is the content of the emails sent by Scott protected from the use of employer under the attorney-client privilege when there is strict email policy which allows the employer to access all the communication made on the employer’s communication system?

Rule: According to Electronic Communications Privacy Act of 1986, employers have the right to intercept the wire, oral or electronic communications of the employees in the normal course of employment if the employers are authorized to do so.

Analysis: Beth Israel Medical Center (BI) has an email policy which states that any communication created, received, saved or sent by the employees on the Medical center’s computers are property of the medical center. Scott has agreed to the policy while using the communication systems of BI. According to the policy any mails created, sent or received by Scott are the property of BI. The provisions under Electronic Communications Privacy Act provides the right to BI to intercept the emails overriding the attorney-client privilege as they have sought permission from Scott to do so while using the communication system.

Conclusion: The emails are not protected from the employer according to ECPA and attorney-client privilege would not prevail in the presence of the email policy.