The Court rejects Dr. Scott’s argument . . . and holds that BI’s e-mail policy is critical to the outcome here. . . . A “no personal use” policy combined with a policy allowing for employer monitoring and the employee’s knowledge of these two policies diminishes any expectation of confidentiality. . . .
As there is no New York case on point to determine whether the communication here was made in confidence or not, we look for guidance to In Re Asia Global Crossing, which is a federal bankruptcy case virtually identical to this case and a case upon which both parties rely. In re Asia Global Crossing, Ltd., 322 B.R. 247 (S.D.N.Y.2005). In Asia Global, executives used their employer’s e-mail system to communicate with their personal attorney concerning actual or potential litigation with the employer, the owner of the e-mail system. 322 B.R. at 256. The issue in the case was identical to the issue here. Id. at 251. The Court looked at a variety of federal cases which addressed whether an employee had a reasonable expectation of privacy in his or her office e-mail, but where attorney client privilege was not an issue. 322 B.R. at 257-258. The Asia Global Court concluded that, the attorney-client privilege would be inapplicable if “(a) … the corporation maintain[s] a policy banning personal or other objectionable use, (b) … the company monitor[s] the use of the employee’s computer or email, (c) … third parties have a right of access to the computer or emails, and (d) … the corporation notif[ies] the employee, or was the employee aware, of the use and monitoring policies?” 322 B.R. at 257.