Peerenboom v. Marvel Entertainment, LLC
148 A.D.3d 531
| N.Y. App. Div. | 2017Background
- Petitioner Harold Peerenboom sought disclosure of communications and documents involving nonparty Isaac Perlmutter, challenging asserted privileges in discovery against Marvel Entertainment, LLC.
- Perlmutter, Marvel's Chair, used Marvel’s corporate email system for some personal correspondence with his wife and asserted marital privilege over certain logged items; he also asserted attorney work product protection over other items.
- Marvel's written email policies permitted limited personal use but stated the company owned all emails, reserved rights to access, audit, copy, delete, and disclose messages, and required compliance with company rules.
- Supreme Court granted in part Perlmutter’s motions for protective orders and ordered Marvel to produce certain items for in camera review; the parties appealed aspects of that order.
- The Appellate Division reviewed whether Perlmutter reasonably expected privacy (spousal privilege), whether work product protection survived use of a corporate email system, and whether an accountant-client privilege applied.
Issues
| Issue | Peerenboom's Argument | Perlmutter's Argument | Held |
|---|---|---|---|
| Whether use of employer email waived spousal (marital) privilege | Employer policies and ownership do not negate a reasonable expectation of privacy for personal spousal communications | Use of Marvel email for personal messages retained confidentiality; marital privilege applies | No reasonable expectation of privacy; marital privilege waived because company policy put Perlmutter on notice and he used employer system for personal communications |
| Whether use of employer email waived attorney work product protection | Employer policy and access could defeat confidentiality for work product | Personal use on employer system does not by itself waive work product absent actual disclosure | Use of employer email does not automatically waive work product; court remanded for in camera review to determine if documents are protected work product |
| Whether accountant-client privilege applies under choice of law | Florida law (asserting accountant-client privilege) should govern and protect documents | New York has no accountant-client privilege; New York law governs and defeats the claim | Denied: New York law controls; there is no accountant-client privilege in New York |
| Applicability of agency/common interest doctrines to create privilege | Agency or common interest should protect communications | Those doctrines do not create independent privileges absent other criteria | Rejected: agency and common interest doctrines do not themselves create privilege in this case |
Key Cases Cited
- Matter of Priest v. Hennessy, 51 N.Y.2d 62 (holding that confidentiality is essential to attorney-client privilege)
- People v. Kozlowski, 11 N.Y.3d 223 (discussing waiver analysis for work product and confidentiality)
- In re Subpoena Duces Tecum to Jane Doe, 99 N.Y.2d 434 (addressing protection standards for work product)
- Ambac Assurance Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616 (on common interest doctrine limitations)
- People v. Osorio, 75 N.Y.2d 80 (agency doctrine and privilege scope)
- First Interstate Credit Alliance v. Andersen & Co., 150 A.D.2d 291 (recognizing no accountant-client privilege in New York)
- In re Asia Global Crossing, Ltd., 322 B.R. 247 (setting four-factor test for employer email privacy expectations)