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Employee's E-Mails To Lawyer On Company Laptop Are Off Limits

The decision by the Supreme Court of New Jersey in Stengart v. Loving Care Agency  has a lot  of lawyers talking. The case has to do with the privacy interests of an employee’s personal e-mail on a company computer and the attorney-client privilege.

The reason the case made ripples through the employment law community is because there simply aren’t many decisions on the issue and it hits a topic of real practical concern for both employers and employees.

What Happened In The Case

Marina Stengart worked for Loving Care Agency, Inc. (“Loving Care”), a home health care agency, as an Executive Director of Nursing.  Like many employers, Loving Care provided Stengart a laptop computer for company business. Stengart could send e-mails using her company e-mail account from the laptop and she could also access the Internet through Loving Care’s server. 

In December of 2007, Stengart used her computer to access a personal, password-protected e-mail account on Yahoo’s website to communicate with an attorney about her situation at work. She never saved her Yahoo ID or password on the company laptop.

When she sent the personal e-mails Stengart didn’t know  that Loving Care’s 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 left Loving Care and returned the laptop computer.  A couple of months later, she filed a lawsuit with claims of discrimination, harassment and retaliation.

After the lawsuit was filed, Loving Care hired experts to create a forensic image of the laptop's hard drive. Among the items retrieved were the e-mails Stengart exchanged with her lawyer via the personal Yahoo account.

Loving Care's lawyers used the e-mails in the lawsuit. Stengart’s lawyers demanded that the e-mails be identified and returned. Loving Care’s Lawyers argued that Stengart had no expectation of privacy in light of the company’s electronic communications policy which stated in part:

• Loving Care may review, access, and disclose all matters on the company’s media systems and services at any time

• e-mails, Internet communications and computer files are the company’s business records and are not to be considered private or personal to any individual employee

• occasional personal use of the computer is permitted

Stengart’s lawyers asked the trial court to order a return of the e-mails and disqualification of  Loving Care’s lawyers. The judge denied the request, concluding that Stengart waived the attorney client privilege by sending e-mails on the company computer.

Stenagart appealed.The Court of Appeals reversed.

It  found that Stengart had an expectation of privacy in the e-mails and that Loving Care's lawyers violated the disciplinary rules by failing to alert Stengart's lawyers that they had the e-mails before they read them.

It sent the case back to the trial court to determine whether disqualification of the firm, or some other sanction was appropriate. Loving Care appealed

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We have all heard about employees getting into hot water because of their blogs and online activities:

• the Delta flight attendant fired because she posted a provocative photograph of herself in uniform without a visible name or logo

• the Google employee who speculated online about his employer's finances 
  

• the Burger King executive who used his middle school-aged daughter's online identity to attack a farmworkers' advocacy group that was trying to increase pay and improve conditions for tomato pickers

• the computer worker fired because he posted a photograph of his company's loading dock receiving a rival's shipment of computers

There's even a term for it: DOOCED  -- which means getting fired because of something that you wrote in your weblog.

("Blogger Heather B. Armstrong coined the phrase in 2002, after she was fired from her Web design job for writing about work and colleagues on her blog, Dooce.com)

Now we have a new case on the subject from the Ninth Circuit Court of Appeals. In Richerson v. Beckon, the Court ruled against a schoolteacher who claimed constitutional protection for personal speech on her blog.

Here's what happened in the case.

Tara Richerson worked as a curriculum specialist and institutional coach for the Central Kitsap School District in Silverdale, Washington.

The job required her to engage in "trusting mentor relationships" with less experienced teachers in order to give them "honest, critical and private feedback."

Richerson wrote a blog which, according to the opinion, contained highly personal and vituperative comments about her employers, union representatives, and fellow teachers.

Although Richerson did not refer to these individuals by name, many were easily identifiable because of the description of the positions or their personal attributes. Here's one of Richerson's blog posts about her replacement:

Save us White Boy!

I met with the new me today: the person who will take my summer work and make it a full-time year-round position. I was on the interview committee for this job and this guy was my third choice ... and a reluctant one at that. I truly hope that I have to eat my words about this guy.... But after spending time with this guy today, I think Boss Lady 2.0 made the wrong call in hiring him ... He comes across as a smug know-it-all creep. And that's probably the nicest way I can describe him.... He has a reputation of crapping on secretaries and not being able to finish tasks on his own.... And he's white. And male. I know he can't help that, but I think the District would have done well to recruit someone who has other connections to the community.... Mighty White Boy looks like he's going to crash and burn

You don't have to be a lawyer to sense that this blog was going to getting her into trouble. Sure enough, when the blog came to light, Jeanne Beckon, the Director of Human Resources received complaints and several individuals refused to work with Richerson. 

As a result, Beckon transferred Richerson out of her coaching position and into a classroom teaching position, claiming that Richerson's blog fatally undermined her ability to enter into trusting relationships as an instructional coach. Richerson sued.

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I opened up this month's Lawyer USA to find a stunning piece about a swiped PC leading to a $17.5 million dollar verdict. From what's reported, here's what happened in the case of Trealoff v. Forest River Inc. out of the Superior Court of San Bernardino County, California.

Dallen Trealoff, an experienced RV salesman, was hired in 1995 as a sales manager by a start-up company called Forest River Inc., an Indiana based company.

Trealoff  worked out of the company's Rialto, California warehouse and was in charge of developing a sales network in eleven Western states according to a P.E.com story.

The company did not provide a computer so Trealoff used his personal laptop.     

Trealoff claimed that he:

•  was hired to help a fledgling company 

• took a pay cut in reliance on a promise that he would be compensated later at a higher rate

 According to Trealoff's lawyer, the raise never materialized:

It took him about five years to realize they were not going to give him the raise.  That's when he started to look for other employment and then they fired him.

Before Trealoff got fired, the company president Peter Liegl took Trealoff's laptop, stole the hard drive and deleted thousands of files.

During the time he worked for Forest River, Trealoff used his spare time to develop a software program which kept track of sales data. That information was on the computer as was Trealoff's personal financial information.

Trealoff got the computer back and tried to restore some of the files. None of it was usable.

Liegl claimed he took Trealoff's computer because he suspected that Trealoff was stealing company information and going to start his own company.

In 2003, Trealoff and his wife did start their own company called Eclipse Recreational Vehicles.

In 2005, Forest River was bought out by Warren Buffet's  Berkshire Hathway Inc.

Trealoff sued Liegl and Forest River alleging:

• breach of contract
• fraud
• conversion
• violation of a California statutory claim  for improperly accessing a computer without the owner's permission

Forest River counter sued alleging that Trealoff took proprietary information in order to start his own business.

It's important to note these points in the context of the case:

1. Trealoff had no written agreement with Forest River regarding the terms of his employment.
2. Forest River did not have a non disclosure agreement signed by Trealoff

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What if your employer goes into your personal e-mails and tries to use them against you?  According to the Fourth Circuit Court of Appeals case of Van Alstyne v. Electronic Scriptorium, Ltd. your employer could get involved in a big legal nightmare it never imagined.

As very well put by Frank Steinberg at the New Jersey Emplyment Law Blog  I doubt whether ESL's president thought that he was letting himself in for this kind of trouble when he decided to peruse the private e-mails of the object of his office affections.

Here's what happened in the case.  Bonnie Van Alstyne worked for Electronic Scriptorium Limited ("ESL")  a small data conversion company owned and operated by a man named Edward Leonard and his wife Brett. Van Alstyne was a friend of the family and was hired to be the  Vice-President of Marketing.

According to Van Alstyne, during the time she worked at ESL Leonard sexually propositioned her. She rejected his advances. Five months later she was terminated. 

Van Alstyne  filed a sexual harassment charge with the Equal Employment Opportunity Commission. She also filed several other claims for benefits and unpaid commissions in Virginia state court.

In what appears to be a purely vindictive move, ESL sued Van Alstyne in a separate case in Virginia state court.  During the depositions in the case, ESL's counsel started asking Van Alstyne questions about various e-mails which were marked as exhibits.

It turns out that these e-mails were from Van Alstyne's personal e-mail account that Leonard had improperly accessed.

By way of background, Van Alstyne had a company e-mail account during the time she worked at ESL.  Like many employees, Van Alstyne also had a private password-protected e-mail account which she used to handle personal matters from time to time as needed (hers was with AOL).

When Leonard got caught, he first said that he only had a few of  Van Alstyne's personal e-mails. That statement turned out to be "not entirely true" according to the Court:

Leonard ultimately admitted to accessing Van Alstyne’s AOL account at all hours of the day, from home and internet cafes, and from locales as diverse as London, Paris, and Hong Kong. During discovery, Leonard produced copies of 258 different emails he had taken from Van Alstyne’s AOL account.

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