October 18, 2021

Volume XI, Number 291

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October 15, 2021

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Firm’s Computer Policy Doesn’t Undermine Claim of Privilege Over “Private” Communications With Counsel

New York City apartment living can spawn interesting legal disputes when neighbors fail to resolve their grievances amicably and resort to the courts.  Sometimes these disputes bring fanfare as well as opportunities to observe traditional rules of law in action. A recent decision in the ongoing dispute between actor Justin Theroux and his neighbors (Theroux v. Resnicow) is just that.

Theroux has been in a years-long dispute with his downstairs neighbors in the West Village co-op where both reside. As part of the dispute, Theroux sought to compel Norman Resnicow, an equity partner at a New York City law firm, to produce personal emails that Resnicow had sent to his lawyer and his spouse relating to the quarrel using his firm email. Theroux argued that Resnicow’s emails were categorically foreclosed from being protected by the attorney-client and spousal privileges because they lacked the key element of confidentiality required of those privileges.  Theroux relied on the First Department’s decisions in Peerenboom v. Marvel Entm’t, LLC, and Miller v. Zara USA, Inc., discussed here, where the Court, applying the factors set out in In re Asia Global Crossing, Ltd. held that company employees lacked a reasonable expectation of privacy when using a company laptop (in the case of Zara) or email system (in the case of Peerenboom) under applicable company computer/email policies, which, among other things, restricted use of company systems for personal purposes and warned users of the company’s ability to access their accounts.

While acknowledging the similarity between the law firm’s computer/email policy and those in Peerenboom and Zara, the Supreme Court noted that the law firm’s policy invoked by Theroux had an important distinguishing factor. The computer/email policy expressed an expectation that firm “employees” would adhere to the firm’s policy on computer and email usage. This is in contrast to other policies in the firm’s policy manual which specifically stated that “they are addressed to (or include) firm partners or attorneys” or firm “personnel” more broadly, rather than firm “employees.”

Resnicow was not an employee of the firm.  He was an equity partner and, as such, the Supreme Court reasoned, not expressly covered by the computer/email policy, with stated applicability to “employees.” The Court explained that this “lack of clarity” as to the applicability of the policy to Resnicow cut in favor of Resnicow under the fourth Asia Global factor (“whether the employer notified the employee of its computer use and monitoring policies (or whether the employee was otherwise aware of those policies”) and concluded that, based on the circumstances of the case, Resnicow’s emails were not categorically foreclosed from being attorney-client or spousal privileged by Resnicow’s use of his firm email account.  Whether the privilege applied would need to be determined on an individual basis.

Although in this case there was evidence that the law firm’s computer/email policy accurately reflected the intent of the partnership to exclude firm partners, this decision should nonetheless serve as a reminder of the importance of the language used in company email and computer policies.  Companies may be wise to take this ruling as an opportunity to revisit their own computer/email policies to confirm that the language of those policies clearly and accurately aligns with their intended scope.

© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 46
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About this Author

Stacey P. Eilbaum, Litigation Attorney, Proskauer Law Firm
Associate

Stacey Eilbaum is an associate in the Litigation Department. Her practice involves a variety of complex commercial litigation matters, including contract disputes, securities litigation, cross-border commercial disputes and domestic and international arbitration. Stacey has appeared in state and federal court and in proceedings before JAMS and the International Chamber of Commerce.

Stacey’s recent representations include an international arbitration based in London under the ICC Rules concerning indemnity provisions in a personnel supply...

212-969-3147
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