Federal Court Holds That E-Mail Received By Employee From Lawyer On His Work E-Mail System Is Not Privileged

In a recent decision, Judge Roslynn Mauskopf, United States District Judge for the Eastern District of New York, denied defendant Christopher Finazzo's motion in limine to preclude the government from introducing an allegedly privileged e-mail that Finazzo's personal attorney sent to Finazzo's work e-mail account at the clothing retailer Aéropostale, Inc. ("Aéropostale"), his former employer.1 In the e-mail, Finazzo's attorney attached a list of Finazzo's assets that the attorney prepared for the purpose of creating a will.2 Finazzo was asked to review the values listed in the attachment, and the lawyer would draft a revised will based upon information received from Finazzo.3 The government sought to use the e-mail in support of its case against Finazzo for, among other things, mail fraud, wire fraud, and conspiracy.4 It contended that the e-mail was not privileged, because (i) Aéropostale's policies regarding use of its e-mail accounts provided that (a) the e-mail system should generally be used for Company business only; (b) employees have no expectation of privacy in the use of the Company's e-mail system; and (c) Aéropostale reserves the right to monitor or review employee e-mails, and (ii) Finazzo was aware of Aéropostale's policy.5

Finazzo argued that the e-mail was privileged, that Aéropostale's policy regarding its corporate e-mail accounts did not defeat Finazzo's reasonable expectation of privacy, and that Finazzo did not ask his attorney to send the privileged e-mail to his Aéropostale account.6 The Court disagreed, finding that Finazzo had no reasonable expectation of privacy or confidentiality in any communication made through his Aéropostale e-mail account because of the way in which Aéropostale drafted and implemented its computer, e-mail, and Internet usage policy, which was explained in Aéropostale's Employee Handbook that Finazzo acknowledged reading.7

We have written previously about whether the attorney-client privilege protects an employee's personal documents and e-mails stored on a company computer or sent through a company's network.8 Courts generally have found that documents or e-mails created on or sent through a company computer may be confidential and/or privileged if the employee possesses a subjective expectation of confidentiality in those documents that a court finds objectively reasonable.9 A four-factor test (or some derivative thereof) is used to make this determination:

Is there a company policy banning...