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Do You Have Reasonable Expectation of Privacy When Using Work E-mail?


Maybe not.  Unfortunately for a former Aeropostale executive, the United States District Court for the Eastern District of New York recently held that he did not have any reasonable expectation of privacy in an e-mail he received from his private attorney at his work address.  The case of United States v. Finazzo highlights the risks inherent in using your employer’s e-mail for personal communications–especially when those communications would otherwise be privileged.  In this case, the e-mail at issue ultimately lead to the employee’s termination, and subsequent prosecution.

Mr. Finazzo–a former executive at clothing retailer Aeropostale–was charged with a fraudulent scheme in which he allegedly received kickbacks from certain transactions between Aeropostale and South Bay Apparel, Inc., a clothing vendor controlled by another individual (Douglas Dey).  Although the indictment alleges that the scheme began in 1996, Aeropostale apparently did not discover it until 2006, while undertaking an unrelated forensic investigation.

During the investigation, an e-mail from Mr. Finazzo’s personal attorney was discovered in his work e-mail account.  In the e-mail, Mr. Finazzo’s attorney asked him to review an attached asset list, and confirm the values of various assets for the purposes of creating a will.  Among the assets listed were several companies co-owned with Mr. Dey, including South Bay Apparrel, a  company that served as a primary vendor of Aeropostale merchandise.  Upon learning that Mr. Finazzo had undisclosed ownership interests in companies owned by one of Aeorpostale’s primary vendors, Aeorpostale decided to terminate Mr. Finazzo for cause.

This case came to be decided because Mr. Finazzo was asking the court for an order precluding the government from introducing the e-mail (and anything derived from the email) at trial.  Ultimately, the court denied Mr. Finazzo’s motion.  The court’s decision turned on whether Mr. Finazzo had a reasonable expectation of privacy in his work e-mail account.  Under the facts of this case, the court held that he did not.

In rendering its decision, the court noted that it had before it several versions of Aeropostale’s policies governing its employees’ use of company e-mail dating back as early as 1999.  Although each policy had slight variations, and in some cases even permitted incidental personal use, they all stated that the employee “should have no expectation of privacy when using Company Systems.”  The policies also reserved a right by the company to monitor, access, delete or disclose employees’ e-mails at any time without further permission. Additionally, in each case, Mr. Finazzo also signed receipts, acknowledging that he had read and understood the policies.

At first blush one aspect of this case seems unfair to Mr. Finazzo.  How could the court hold that he waived his privilege with respect to the contents of this communication from his attorney when he was the recipient of the e-mail, not the sender?  This is because Mr. Finazzo has not–indeed he could not–allege that his attorney looked up his Aeropostale e-mail address and unilaterally sent him confidential information.  “Rather, Finazzo chose to communicate with his lawyer through a medium in which he had no expectation of privacy, thus inviting responses via that same medium.”

Mr. Finazzo also did not simply delete the allegedly confidential e-mail.  He admitted that after he received it, he forwarded it to his personal, non-Aeropostale e-mail account before he deleted it.  Thus, after he received the e-mail and recognized it as confidential, “he then turned around and sent it back through Aeropostale’s e-mail servers to another account. ”  In so doing, he allowed Aeropostale another opportunity to see the e-mail.  Thus, according to the court, “even if Finazzo were correct that his ‘mere receipt’ creates some legally cognizable distinction, such would be unsupported by his own record.”  Mr. Finazzo both sent and received the privileged e-mail.

This is not the first time a court has held that an otherwise privileged e-mail communication loses its protection because it was sent from a work e-mail account.  But, it serves as an important reminder.  Every day, many of use our work e-mail accounts to send and receive personal messages.  While workplaces have become increasingly willing to permit some incidental personal use, one must always be mindful of the nature of the communication.  If the communication conveys confidential or other information that should not be widely disclosed, think twice before hitting “send.”

Summary Judgment Denied in First Amendment Claim Involving Malicious Prosecution of Sign Ordinance Violations

Fed. Dist. Court in NY Clears Path for First Amendment Sign and Malicious Prosecution Claims.

Government Shutdown Impacting Upstate Courts

Buffalo Courthouse

When the shutdown began on October 1, 2013, the Chief Judge of the United States District Court for the Western District of New York (which includes Rochester), issued this statement:

During the initial stage of the government shutdown, the federal Judiciary will remain open for regular business for approximately 10 business days. On or about October 15, 2013, the Judiciary will reassess its situation and further guidance will be provided. All proceedings and deadlines remain in effect as scheduled, unless otherwise advised, and CM/ECF remains operational.

So far, we have not noticed an impact on the cases we have pending in the Western District of New York.

However, today I received an email from the United States District Court for the Northern District of New York, notifying me that the the Court had filed General Order #48, which issued a stay of certain civil cases pending the restoration of Department of Justice funding.  According to the order, all civil cases (other than civil forfeiture cases) in which the United States Attorney’s Office for the Northern District of New York has appeared as counsel for the United States, its agencies, and/or its employees are hereby stayed until the business day after the President signs into law a budget appropriation that restores Department of Justice funding.  I have not yet seen a similar order for the Western District of New York, but I would not be surprised to see one next week if the shutdown is not yet resolved.

MCBA 2013 Judicial Candidate Ratings

Some of you may know that I serve on the Judiciary Committee of the Monroe County Bar Association.  This week, the MCBA re-released the rating results for seven judicial candidates running for seats this year.  The MCBA also released the rating for one candidate who was more recently rated.  Click here to see the ratings.

For information about the judicial evaluation process used by the committee, click here.

Local Laws to be Published on State Website

On the way in to work this morning, it was reported that the Governor signed a number of bills into law.  So as I often do, I checked the State Legislature’s website to see if any of these recently enacted laws will impact my clients or my practice.

While the newspapers and other media outlets have so far focused on the series of laws that promote the state’s wine trails, it was another chapter that caught my eye.

Within the next six months, the Secretary of State will be required to annually publish local laws on the Department of State website in addition to publishing them in a separate volume as a supplement to the Session Laws.  Chapter 383 of the Laws of 2013 amends subdivision 5 of section 27 of the Municipal Home Rule Law so that it will also require the Secretary of State to publish a complete codification of all local laws in effect that have been adopted by the legislative body of each county on the Department of State’s website.

Soon, it will be easier for laypeople and attorneys alike to find Local Laws enacted pursuant to the State’s Municipal Home Rule Law.  This is another step in the right direction towards making government more open and accessible.

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