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An employee’s e-mails to her lawyer are protected

 

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A decision this week by New Jersey’s Supreme Court adds another layer to the ongoing debate over employee’s right to privacy within the workplace.   The Court concluded that an employee, Marina Stengart, could reasonably expect that e-mail communication with her lawyer through her personal, password-protected, web-based e-mail account would remain private, and that sending and receiving them using a company laptop did not eliminate the attorney-client privilege that protected them.   In addition, the Court held that the employer’s lawyer violated the rules of professional conduct by reading Stengart’s e-mails. 

Underlying Facts: 

While employed by Loving Care Agency, Ms. Stengart  was provided with a laptop computer to conduct company business. From the laptop, she could send e-mails using her company e-mail account; she could also access the Internet through Loving Care’s server. Unbeknownst to Stengart, browser software automatically saved a copy of each web page she viewed on the computer’s hard drive in a “cache” folder of temporary Internet files. Stengart used her laptop to access a personal, password-protected e-mail account on Yahoo’s website, through which she communicated with her attorney about her situation at work. She never saved her Yahoo ID or password on the company laptop. Not long after, Stengart left her employment with Loving Care and returned the laptop. In February 2008, she filed the pending complaint.

In anticipation of discovery, Loving Care hired experts to create a forensic image of the laptop’s hard drive, including temporary Internet files. Those files contained the contents of seven or eight e-mails Stengart had exchanged with her lawyer via her Yahoo account. At the bottom of the e-mails sent by Stengart’s lawyer, a legend warns readers that the information “is intended only for the personal and confidential use of the designated recipient” of the e-mail, which may be a “privileged and confidential” attorney-client communication.

Attorneys from the law firm representing Loving Care reviewed the e-mails and used the information in discovery. Stengart’s lawyer demanded that the e-mails be identified and returned. The Firm disclosed the e-mails but argued that Stengart had no reasonable expectation of privacy in files on a company-owned computer in light of the company’s policy on electronic communications, which states that Loving Care may review, access, and disclose “all matters on the company’s media systems and services at any time.” It  also states that e-mails, Internet communications and computer files are the company’s business records and “are not to be considered private or personal” to employees. It goes on to state that “occasional personal use is permitted.”

Legal Analysis:

After first counseling that these types of cases must be decided based on their unique fact, the Court concluded that regardless of an employer’s written policies, an employer has no right to retrieve and read an employee’s attorney-client communication which is sent through a personal, password-protected e-mail account, even where the employee uses the company’s computer system.   “ Under all of the circumstances, Stengart could reasonably expect that e-mails exchanged with her attorney on her personal, password-protected, web-based e-mail account, accessed on a company laptop, would remain private. By using a personal e-mail account and not saving the password, Stengart had a subjective expectation of privacy. Her expectation was also objectively reasonable in light of the ambiguous language of the Policy and the attorney-client nature of the communications.”

In concluding that the attorney-client privilege protected the e-mails, the Court also rejected the claim that the attorney-client privilege was waived. The Policy did not give Stengart, or a reasonable person in her position, cause to anticipate that Loving Care would be watching over her shoulder as she opened e-mails from her lawyer on her personal, password-protected Yahoo account. Similarly, Stengart did not waive the privilege as she took reasonable steps to keep the messages confidential and did not know that Loving Care could read communications sent on her Yahoo account.  In fact, the Court concluded that even a policy that provided unambiguous notice that an employer could retrieve and read an employee’s attorney-client communications, if accessed on a personal, password-protected e-mail account using the company’s computer system, would not be enforceable.

Bottom Line:

While employers should adopt and enforce policies relating to computer use to protect the assets and productivity of a business, but they have no basis to read the contents of personal, privileged, attorney-client communications.

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