You could get sued, although the lawyer in Medcalf v
Walsh (SDNY, 9 April 2013) did manage to have the
assistant's action against him and his wife dismissed. Valerie
Medcalf worked for George Walsh, a lawyer, and had full access to
his work e-mail account. Medcalf became pregnant and did not have a
particularly easy time of it: she needed time off for numerous
medical appointments, suffered severe post-partum depression,
underwent psychiatric treatment and went on medical leave (all the
while continuing to check her boss's e-mail and manage
responses). In the course of doing that, she came across a series
of e-mails between Walsh and his wife Evelyn, in which they
expressed scepticism about the extent of Medcalf's illness, her
need for medical leave and (on the strength of a baby picture
Medcalf had circulated) her ability to keep herself and her child
sufficiently clean. Incensed, Medcalf confronted Mrs Walsh,
cc'ing her boss and bcc'ing her supervisors at the firm.
She also asked the firm to investigate. The firm did, and then
fired Medcalf. Medcalf sued the Walshes, alleging that they had
defamed her, intentionally interfered with her business relations
(by getting her fired) and intentionally inflicted emotional
All claims failed. There was no defamation
because there had been no publication of the statements between the
Walshes. Communications between spouses are the subject of absolute
privilege under New York law, so their exchange was entirely
private for the purposes of defamation law. The fact that they used
the firm's e-mail system didn't alter that (although it may
have rendered their communications admissible in evidence).
Medcalf's bcc to the firm was not publication either. In any
event, the statements made were expressions of opinion about
Medcalf's personal character, not her competence as an
assistant. There was no evidence to suggest an intention to inflict
emotional distress, which requires 'outrageous' or
'egregious' conduct. Similarly, the facts did not support
an intent to cause harm to Medcalf's economic interests.
Reading between the lines, it appears as though Engelmayer J
thought she was to a large extent the author of her own
misfortunes. But it's probably not a bad idea to watch what you
say in private correspondence, if a third party can see it.
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