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 appealedContinue Reading...