NY Court Re-Affirms Privilege Protection for Personal Emails Sent by Law Firm Partner on Firm Email Account

Citing new deposition testimony, actor Justin Theroux in a current movement requested the New York Supreme Court to rethink its December 2020 denial of Theroux’s movement to compel manufacturing of emails that his neighbor, Norman Resnicow, a regulation agency accomplice, despatched to his private lawyer concerning the events’ quarrel (associated to the New York Metropolis co-op the place they each reside) utilizing his regulation agency e mail account. 

Theroux had argued that Resnicow’s emails to his private lawyer lacked the important thing ingredient of confidentiality required of the attorney-client privilege as a result of they had been despatched on his agency e mail account and subsequently and not using a affordable expectation of privateness.  In so arguing, Theroux relied upon on the First Division’s selections in Peerenboom v. Marvel Entm’t, LLC , and Miller v. Zara USA, Inc., the place the First Division held that firm staff lacked an inexpensive expectation of privateness when utilizing an organization laptop computer (Zara) and e mail system (Peerenboom) beneath relevant firm pc/e mail insurance policies, which, amongst different issues, restricted use of firm methods for private functions and warned customers of the corporate’s capacity to entry their accounts.  The Supreme Court, in rejecting Theroux’s movement, distinguished Resnicow’s circumstances from Peerenboom and Zara since his agency’s pc/e mail coverage – although admittedly just like the insurance policies in Peerenboom and Zara – expressed solely an expectation that agency “employees”, not companions, would adhere to the agency’s coverage on pc and e mail utilization, suggesting that Resnicow was not conscious of the likelihood that his emails could be uncovered to the view of third events.  (See here for more on the December 2020 opinion.)

Having since then elicited deposition testimony from Resnicow acknowledging that e mail “in law firms . . . can be seen by [the] management committee” and IT workers, Theroux moved this fall to resume his movement in search of entry to the emails.  The thrust of this current movement was that Resnicow’s deposition testimony undermined his rivalry, made on the prior movement, {that a} accomplice’s private emails despatched or obtained on agency servers “still belong to that partner, such that other partners or firm staff may not read those emails without the partner’s permission.”

Whereas the Court granted Theroux’s movement to resume his prior movement based mostly on this growth, the Court stood by its preliminary resolution that Resnicow’s use of his agency e mail account to speak along with his private lawyer about his dispute with Theroux didn’t undermine the safety afforded these emails pursuant to the attorney-client privilege.  In so holding, the Court famous that the assertion Resnicow made at his deposition was couched in generalities about “law firms” and didn’t clearly concede that it will be correct for his regulation agency’s administration and IT to entry accomplice emails on agency servers.  The propriety of accessing emails is distinct from the technical capacity to take action, the Court defined, and subsequently Resnicow’s acknowledgment didn’t detract from his place – bolstered by his obvious exclusion as a regulation agency accomplice from his agency’s e mail and pc coverage – that agency administration and IT wouldn’t entry his private emails despatched on the agency’s system with out permission.  Equally, the Court emphasised that the deposition testimony elicited by Theroux’s counsel was given within the current tense – i.e., Resnicow’s present understanding about his agency’s e mail system – and thus didn’t shed mild on his contemporaneous expectation of privateness within the disputed emails at time he despatched them.

Though the Court preserved is prior holding, this resolution continues to shed mild on the necessary factual nuances at play in privilege disputes relating to non-public use of firm e mail accounts and, particularly, the evidentiary file a celebration in search of to compel manufacturing could have to determine (although Theroux fell wanting establishing) in circumstances the place, like this one, an organization pc/e mail coverage doesn’t explicitly cowl the e-mail sender.

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