NJ Supreme Court Rules That The Attorney-Client Privilege Protects Worker's E-Mail Exchanges With Lawyer On Company Laptop

Yesterday, the New Jersey Supreme Court ruled that the attorney-client privilege protects e-mails between a would-be plaintiff / employee and her attorney discussing a possible employment lawsuit against the plaintiff’s employer that were transmitted on the corporate laptop of the employer. In Stengart v. Loving Care Agency, Inc., ___ N.J. ___ (Docket No. A-16-09, March 30, 2010), the high court ruled that sending and receiving personal, password-protected e-mails on a corporate laptop did not eliminate the attorney-client privilege that protected them. The opinion could influence workplace privacy rules across the country, lawyers told reporters from New Jersey’s Star Ledger newspaper.

Lawyers from the law firm of Sills Cummis & Gross in Newark, NJ read the e-mails after the employee, Marina Stengart, quit her job as a nursing manager, filed suit and turned in her computer. Sills Cummis represented Stengart’s employer, a home health care company called the Loving Care Agency. During a forensic analysis of the laptop, the law firm found seven or eight e-mails Stengart had exchanged with her lawyer via her Yahoo email account. Stengart’s lawyer demanded that the e-mails be identified and returned. The Firm disclosed the e-mails to plaintiff 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. In that regard, The company’s electronic communications  policy stated that Loving Care may review, access, and disclose “all matters on the company’s media systems and services at any time.” It also stated 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. However, personal use was not absolutely barred. In fact, the policy stated that “occasional personal use is permitted.”

The Supreme Court concluded that the Loving Care policy on the privacy of e-mails sent on the laptop was ambiguous. But, the court said, “even a more clearly written company manual—that is, a policy that banned all personal computer use and 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.”

The court said Sills Cummis violated ethics rules when lawyers read the e-mails and failed to promptly notify Stengart it had retrieved them, but there was no bad faith by the law firm. The court instructed a lower court to determine whether Sills Cummis should be disqualified from representing the Loving Care Agency.

Source: ABA Journal