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May 31, 2017 Practice Points

Personal Use of Employer Email System Waives Attorney-Client Privilege but Not Work-Product Protection

Peerenboom v. Marvel offers several lessons.

Ronald Hedges

Isaac Perlmutter was employed by Marvel Entertainment. He secured relief as a nonparty from the New York Supreme Court (a trial-level court) against disclosure by Marvel of allegedly privileged communications on the basis of, among other things, attorney-client privilege and work-product protection. The First Department of the New York Appellate Division reversed and remanded on the basis of Perlmutter’s use of Marvel’s email system. Peerenboom v. Marvel Entertainment, LLC, 2017 NY Slip Op. 01981, 148 AD3d 531 (2017).

The key to the reversal and remand was Perlmutter’s use of Marvel’s email system to make what might otherwise have been protected communications. Marvel email policies provided, among other things, that use of the system for personal reasons was a mere courtesy, that Marvel “owned” all email within its system, and that Marvel had the right to access and review any messages. Thus, Perlmutter “lacked any reasonable expectation of privacy in his personal use . . . and correspondingly lacked the reasonable assurance of confidentiality that is an essential element of the attorney-client privilege. . . .” Moreover, whether or not Perlmutter had actual notice of the policies was irrelevant: “Given, among other things, Perlmutter’s status as Marvel’s chair, he was . . . constructively on notice of its contents.”

Work-product protection fared differently. The record was devoid of evidence that Marvel reviewed any of Perlmutter’s email or that anything was disclosed to a third party and, absent such evidence, there was no waiver of work-product protection. However, the appellate court remanded for in camera review to determine whether any email constituted work product.

Peerenboom offers several lessons. For the employer that allows personal use of a corporate email system, the employer should make clear that it retains the right to access and review any personal email and content. That presupposes, of course, that the employer chooses to allow personal use (perhaps to monitor in an attempt to avoid the transfer of trade secrets or the like?). Also for the employer, and juxtaposed against Perlmutter’s status as Marvel’s chair, the retention of the right to access and review should be clearly communicated to employees to avoid arguments of lack of personal notice or ambiguity in the policies. For the employee, the question is whether to use an employer’s system to communicate with his or her attorney or, for that matter, to expose any personal communications to possible review.

Ronald Hedges is with Dentons in New York, New York.

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