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A New York appeals court has reviewed what Marvel chairman Ike Perlmutter will have to turn over to his adversary in a nasty fight between billionaires. The decision may interest those who are worried about potentially giving up attorney-client or spousal confidentiality privileges by using a corporate email server.
Toronto businessman Harold Peerenboom is suing Perlmutter for allegedly smearing him in an anonymous hate-mail campaign. Both live at the same Palm Beach, Fla., residential community where a war broke out over the tennis courts. Perlmutter, a friend of President Donald Trump, is counterclaiming after Peerenboom surreptitiously took Perlmutter’s DNA as part of a gambit to prove Perlmutter was responsible for the hate mail.
In the midst of this, a New York court was asked to force Marvel to comply with a subpoena for Perlmutter’s emails. In response, Perlmutter moved for a protective order barring Marvel from producing copies of certain email messages, arguing they were protected by attorney-client privilege.
In a decision last October, New York Supreme Court Judge Nancy Bannon rejected the argument.
“Disney’s computer usage policy prohibits personal and other objectionable use of Marvel’s server and email system,” states Bannon. “Disney/Marvel had the right to monitor the use of all employees’ computer usage, third parties have a right of access to the computer, Disney/Marvel expressly asserted a possessory interest in all emails sent and received on its servers, and Perlmutter was or should have been aware, as Marvel’s Chairman or CEO, that Marvel implemented Disney’s use and monitoring policies.”
On Thursday, a New York appeals court agreed that Perlmutter lacked any reasonable expectation of privacy in his personal use of Marvel’s email system, and correspondingly, lacked the reasonable assurance of confidentiality. The judges wrote that confidentiality was an “essential element of the attorney-client privilege” and also added that “Perlmutter’s use of Marvel’s email system for personal correspondence with his wife waived the confidentiality necessary for a finding of spousal privilege,” regarding conversations between him and his wife, Laura.
Perlmutter does score one limited victory.
According to the ruling, “Given 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.”
And so, the appeals court modifies a protective order, but Perlmutter will have to give up more of his messages than he would have wished.
Meanwhile, down in Florida, Peerenboom’s attorneys continue to hunt for evidence that could help prove Perlmutter was the source of mailings including ones sent to more than a thousand inmates in prisons across Florida and Ontario, Canada.
Back in October, Peerenboom brought a motion to compel the production of Perlmutter’s email. According to court documents, Perlmutter first claimed only having a business account with Marvel, but there later came word of at least nine different email accounts including a Yahoo one where Perlmutter used Tony Russo as an alias. (Perhaps a bit strangely, there have been several Captain America films directed by Anthony Russo.)
At a hearing on the subject, Perlmutter’s role at Marvel came up. Although he’s held himself out as CEO of Marvel (that’s what many publications have reported) and there’s never been a press release to the contrary, there was some issue about his real role at the company. The court ordered that Perlmutter make a sworn statement clarifying. In response, Perlmutter said he was chairman of Marvel as well as an employee.
But that’s not good enough for Peerenboom, whose lawyer went back to the judge last week requesting that Perlmutter be ordered to try again with even more clarity. Stay tuned.
(Update: This story originally stated that Perlmutter got relief from the appellate court, but upon further review, the decision that attorney-client privilege was pierced by use of a corporate email server was largely upheld.)
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