Weiss, Rifkind, Wharton & Garrison LLP, New York (Allan
J. Arffa of counsel), for appellant-respondent.
Kasowitz, Benson, Torres & Friedman, LLP, New York (Marc
E. Kasowitz of counsel), for respondent-appellant.
J.P., Acosta, Moskowitz, Kahn, Gesmer, JJ.
Supreme Court, New York County (Nancy M. Bannon, J.), entered
October 17, 2016, which granted nonparty Isaac
Perlmutter's motions for protective orders against
disclosure of certain allegedly privileged items to the
extent of directing respondent Marvel Entertainment, LLC
(Marvel) to produce certain privilege log items allegedly
subject to the marital privilege for in camera review, and
otherwise denied the motions, unanimously modified, on the
law and the facts, to deny so much of Perlmutter's
motions as sought protective orders on the ground of marital
privilege, to direct Marvel to produce to Supreme Court all
items in Perlmutter's privilege log in which he asserts
attorney work product protection, and to remand the matter to
Supreme Court for in camera review and a determination of
whether such documents are in fact protected attorney work
product, and otherwise affirmed, without costs.
of the four factors set forth in In re Asia Global
Crossing, Ltd. (322 BR 247, 257 [Bankr S.D. NY 2005]),
which we endorse (see also e.g. Scott v Beth Israel Med.
Ctr. Inc., 17 Misc.3d 934, 941 [Sup Ct, NY County
2007]), indicates that Perlmutter lacked any reasonable
expectation of privacy in his personal use of the email
system of Marvel, his employer, and correspondingly lacked
the reasonable assurance of confidentiality that is an
essential element of the attorney-client privilege (see
Matter of Priest v Hennessy, 51 N.Y.2d 62, 69 ).
Among other factors, while Marvel's email policies during
the relevant time periods permitted "receiving e-mail
from a family member, friend, or other non-business purpose
entity... as a courtesy, " the company nonetheless
asserted that it "owned" all emails on its system,
and that the emails were "subject to all Company rules,
policies, and conduct statements." Marvel
"reserve[d] the right to audit networks and systems on a
periodic basis to ensure [employees'] compliance"
with its email policies. It also "reserve[d] the right
to access, review, copy and delete any messages or content,
" and "to disclose such messages to any party
(inside or outside the Company)." Given, among other
factors, Perlmutter's status as Marvel's Chair, he
was, if not actually aware of Marvel's email policy,
constructively on notice of its contents (see People v
Puesan, 111 A.D.3d 222, 229 [1st Dept 2013], lv
denied 22 N.Y.3d 1202');">22 N.Y.3d 1202 ; Long v Marubeni Am.
Corp., 2006 WL 2998671, *3, 2006 U.S. Dist LEXIS 76594,
*9 [SD NY, Oct. 19, 2006, No. 05-Civ-639(GEL)(KNF)]).
use of Marvel's email system for personal correspondence
with his wife waived the confidentiality necessary for a
finding of spousal privilege (see CPLR 4502[b];
In re Reserve Fund Sec. & Derivative Litig., 275
FRD 154, 159-160 and n 2, 164 [SD NY 2011]; United States
v Etkin, 2008 WL 482281, *5, 2008 U.S. Dist LEXIS 12834,
*19-20 [SD NY, Feb. 19, 2008, No. 07-CR-913(KMK)]).
the lack of evidence that Marvel viewed any of
Perlmutter's personal emails, and the lack of evidence of
any other actual disclosure to a third party,
Perlmutter's use of Marvel's email for personal
purposes does not, standing alone, constitute a waiver of
attorney work product protections (see People v
Kozlowski, 11 N.Y.3d 223, 246 , cert
denied 556 U.S. 1282');">556 U.S. 1282 ; Bluebird Partners v
First Fid. Bank, N.J., 248 A.D.2d 219, 225 [1st Dept
1998], lv dismissed 92 N.Y.2d 946');">92 N.Y.2d 946 ). We
accordingly modify to the extent indicated (see
Kozlowski, 11 N.Y.3d at 244 n 12; Matter of Subpoena
Duces Tecum to Jane Doe, 99 N.Y.2d 434, 442 ).
is no accountant-client privilege in this state (see
First Interstate Credit Alliance v Andersen & Co.,
150 A.D.2d 291, 292 [1st Dept 1989]). Perlmutter has failed
to bear his burden of showing that the evidentiary law of
Florida, which he asserts does recognize an accountant-client
privilege, should govern this issue (see Schultz v Boy
Scouts of Am., 65 N.Y.2d 189, 202 ; Hyatt v
State of Cal. Franchise Tax Bd., 105 A.D.3d 186, 204 [2d
Dept 2013]; First Interstate Credit Alliance, 150
A.D.2d at 292-293).
reliance on the agency and common interest doctrines is
unavailing, as those doctrines do not in and of themselves
constitute a source of privilege, and there is no basis for
applying them in this case (see Ambac Assur. Corp. v
Countrywide Home Loans, Inc., 27 N.Y.3d 616, ...