Legal Issues and Recent Developments, Published by the Lurie Law Firm LLC

Employees Have Reasonable Expectation of Privacy in Personal Attorney-Client E-Mails From Company Computers

On March 30, 2010, the New Jersey Supreme Court held that employees have a reasonable expectation of privacy in e-mails sent to their attorneys from their company computers.  In Stengart v. Loving Care Agency, plaintiff, Marina Stengart, communicated several times with an attorney about a potential lawsuit against her employer, Loving Care Agency.  While she communicated with him through her personal Yahoo account, she did so using her company provided computer.  Shortly thereafter, she resigned from Loving Care, claiming constructive discharge, and filed a lawsuit, alleging that she was subjected to harassment, discrimination and retaliation.  At the time of her separation, she returned her company computer.

In anticipation of litigation, Loving Care retained a forensic expert to retrieve all of plaintiff’s e-mails and web-based activity.  Unbeknownst to plaintiff, the company had the ability to obtain all communications that were sent from her personal account on the company computer, including the communications with her lawyer.

The company claimed that plaintiff had no expectation of privacy and had waived the attorney-client privilege, and that the company had a right to look at these e-mails, based on its Electronics Communication policy.  That policy stated:

 The company reserves and will exercise the right to review, audit, intercept, access, and disclose all matters on the company’s media systems and services at anytime, with or without notice.

 . . . .

E-mail and voice mail messages, internet use and communication and computer files are considered part of the company’s business and client records. Such communications are not to be considered private or personal to any individual employee.

 The principal purpose of electronic mail (e-mail) is for company business communications. Occasional personal use is permitted; however, the system should not be used to solicit for outside business ventures, charitable organizations, or for any political or religious purpose, unless authorized by the Director of Human Resources.

The Court held that this policy did not provide adequate notice to employees that their e-mails, sent from their private accounts, could be accessed by their employer.  In this regard, the court noted that the term “company’s media systems” was vague; employees might reasonably expect that this applies to company e-mails, and not to e-mails from personal accounts that happened to be sent from the company computer.  Further, according to the Court, the policy gives no notice to employees that their personal e-mails are somehow stored on their hard drive, and therefore accessible to their employer.  The Court further observed that the policy is entirely silent on whether e-mails on private web-based accounts even fall within this policy.  Finally, the court noted that the policy allows employees to use e-mail for occasional personal use, creating further ambiguity as to whether personal e-mail is considered company property.

In contrast to the ambiguity of the electronic communications policy, the Court found there was no ambiguity in the strong public policy protecting attorney-client communications.   In this regard, the Court noted that other cases have have found no reasonable expectation of privacy when employees view or save inappropriate material on their company computers.   Further, employers might have a legitimate interest in monitoring communications that might have a detrimental effect on their business.

The Stengart Court noted that a different analysis might apply to attorney-client communications.  The Court noted that other courts have recognized that individuals do expect that their communications with their lawyers are private, particularly where the employee took reasonable steps to protect their confidentiality, e.g., using their personal accounts rather than company accounts, sending messages from their company laptop at home rather than through the company’s server, and whether they saved their log in information on their company computer.   Further, the e-mails, on their face, noted that they were to and from and attorney, and that they were subject to the attorney-client privilege.  Accordingly, the Court found that the documents were privileged, and that the company’s attorneys may have violated rules of professional conduct by reviewing them and by not returning these e-mails as soon as they discovered their existence.

The Stengert decision provides some valuable lessons.  First, employers should review their electronic communications policies to make sure that they are not overly vague and ambiguous.  Given the strong public policy protecting attorney-client communications, it is unlikely, however, that a Court would hold that there is no right to privacy in e-mails from a private web-based account using the employer’s equipment, even if the policy somehow specifically included these within the definition of employer electronic media.  Employees should also be careful not to send confidential information from their employer’s e-mail accounts; if they want information to remain confidential, they should use their private e-mail accounts for this purpose, and preferably not do so using their company computers.  It is also prudent to include the legend “ATTORNEY-CLIENT COMMUNICATION” at the top of such communications.  Further, attorneys should immediately return these documents as soon as they are aware that they have them.  As noted in an earlier post, employers may have a legitimate interest in their confidential documents, and should accord the same deference to confidential documents of their employees.   Finally, this decision should not be interpreted to imply that employers do not have a legitimate right to monitor improper use of electronic media by employees.

Tags: attorney-client privilege, , privacy

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