Litigation: June 2008 Archives
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That written policy apparently was enough for the court. The doctor/employee, of course, argued that the emails were privileged because they were sent to his attorney in the context of litigation between the doctor and the employer hospital. The court, however, said that the effect of the hospital email policy was to create an environment whereby the employer was "looking over your shoulder" when you are composing email.
This whole analysis of whether someone harbors a reasonable expectation of privacy or whether it is in itself reasonable to harbor an expectation of privacy all stems from the Fourth Amendment of the United States Constitution in the context of searches and seizures of persons and property. Realistically, an employer should not be able to articulate an email policy as described and then "blow up" the attorney client privilege merely by maintaining that policy. Oftentimes there are no choices. People are at work and they have legal matters to deal with and it is 2008 and email is very often how we communicate. The employer could not intercept a telephone conversation merely by saying that they are "listening in." There is far more involved. In that realm, when the government is conducting a wiretap, a judge must issue an order to do so. In the context of that wiretap, if the listening agents know or come to realize that the person to whom the wiretap is directed is speaking to his attorney, the law requires that they turn off the wiretap device for the pendency of the call. The government can't listen in, but the employer can?
John M. Hanamirian
Overstock.com, Inc. has filed a lawsuit in the New York Supreme Court challenging the New York State tax law requiring Internet retailers to collect and pay sales tax on their in-state sales. The Complaint states that Overstock is seeking a declaration that the New York law is unconstitutional.
For the most part, you need to have some sort of presence within a jurisdiction in order to be subject to tax, even if your presence is just soliciting business within a state that can be enough. The gist of the Complaint filed by Overstock is that Overstock sets up deals with affiliates throughout the country and the world, as do most website retailers, whereby Internet traffic is delivered to Overstock.com. In exchange for the delivery of that traffic, a fee is paid. The delivered customer now makes a purchase. The delivered customer could be generated from anywhere, but it just so happens he is from New York. The State of New York says Overstock.com needs to collect sales tax from that sale. Overstock says they did nothing to generate a sale from a New York customer. Specifically, “the statute imposes the burden on Overstock to collect and pay taxes even if the purchase by the New York customer is based on a referral to Overstock’s website that is indirect, or passes through various other websites with whom Overstock has no agreement or connection whatsoever.” Sounds pretty unconstitutional to me, but the problem for Overstock is that if they do not get the tax from Overstock, the ultimate seller, there is no chance whatsoever of ever collecting the tax. The problem for the State, however, is that they and other states continually draft legislation that, in an overbroad manner, attempts to fix a problem that is not capable of being fixed and so, the legislation is invariably stricken.
We shall see, but the answer seems to be that you cannot rely on historic notions of state taxation when dealing with Internet retailers. The states need to get together, apply a blended rate of tax from the rates used in each state, apply the rate to all the Internet sales of a particular retailer, collect the tax and split it equally.
John M. Hanamirian
