Do Employees Have the Personal Privicy Right to the Company's Computer Systems and E-Mails ?
In Scott v. Beth Israel Med. Ctr., Inc., 17 Misc 3d 934, 938, 847 N.Y.S.2d 436 [Sup Ct NY County 2007], Plaintiff, Dr. Scott, sued Beth Israel Medical Center, Inc. ("BI") for its alleged breach of a severance agreement.
In that case, BI had provided e-mail correspondence between Dr. Scott from his BI e-mail address to his counsel.
BI's counsel, without reading the e-mail, contacted Scott's counsel and advised that they had the correspondence and that they believed the privilege had been waived by Scott's use of BI's internet system.
In that case, BI's policy warned employees that the computer system and e-mail system were the property of BI, that they could only be used for business purposes, that all information sent and received on BI's systems was the property of BI, and that the employees had no personal privacy right in the material created, received or sent.
Relying on Matter of Asia Global Crossing, Ltd. (322 BR 247, 257 [Bankr SD NY 2005]), the court reviewed the factors to consider, which were "(a) ... the corporation maintain[s] a policy banning personal or other objectionable use, (b) ... the company monitor[s] the use of the employee's computer or email, (c) ... third parties have a right of access to the computer or emails, and (d) ... the corporation notifies the employee, or was the employee aware, of the use and monitoring policies ....'" (id. at 941, quoting Matter of Asia Global Crossing, Ltd., 322 BR at 257).
The court found that factors (a), (b) and (d) weighed in favor of a finding that the privilege had been waived, and therefore, denied Scott's motion for a protective order.
Therefore, in Scott, since the BI policy had the same effect as someone looking over Scott's shoulder every time he sent an e-mail, communication could not have been made in confidence.