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Attorney-client privilege: It does apply when e-mailing from work

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in Discrimination and Harassment,Human Resources

The rise of electronic communication has forced employers and courts to take a fresh look at many issues that used to be considered routine. The age-old concept of attorney-client privilege is the latest one to whipsaw through the courts.

In May 2009, we brought you “Check your policy! No privilege when e-mailing lawyer from work,” which discussed the impact of the trial court decision in Stengart v. Loving Care Agency (Docket No. BER-L-858-08, N.J. Super., Law Div., 2009).

The lower court in Stengart held that e-mails between a former employee and her attorney were not protected by the attorney-client privilege because they were prepared and stored on the company’s computer system.

An appellate court has now reversed that decision, and ruled that the attorney-client privilege outweighs an employer’s property interest in the information contained on the company’s computer and e-mail system.

Policy: It’s company info

In Stengart, the Loving Care Agency, a home health-care provider, had a written policy stating that all computer records were considered part of the employer’s business records. The employer retained the right to review information contained on its system.

Despite that policy, employee Maria Stengart exchanged a number of private e-mails with her attorney, using her company-issued laptop computer. Although the computer belonged to her employer, the employee used her personal, password-protected Yahoo account when communicating with her lawyer—not her company e-mail account.

Stengart resigned and brought a discrimination lawsuit. The e-mails came to light after Loving Care hired a forensic data recovery service to analyze the computer. The e-mails were found and turned over to the company’s attorneys. During the discovery process, Stengart’s lawyer learned that Loving Care’s attorneys had obtained the e-mails.

Privilege outweighs property

As we reported in May, the trial court initially held that the communications were not protected by the attorney-client privilege and denied the employee’s request to have the company surrender the e-mails. An appellate court disagreed with the lower court and recently overturned the decision.

The Appellate Division essentially found that the attorney-client privilege trumped the property rights and policies of the employer. In the words of the appeals court, “The policies undergirding the attorney-client privilege substantially outweigh the employer’s interest in enforcement of its unilaterally imposed regulation [and] we reject the employer’s claimed right to rummage through and retain the employee’s e-mails to her attorney.”

The court decided that the content of the communications between Stengart and her lawyer was privileged and should not be treated as company property simply because the messages were prepared and transmitted on a computer system that belonged to the employer.

Employers still have rights

While the Stengart case may, at first blush, sound like a pro-plaintiff opinion, the Appellate Division did not ignore the employer’s right to operate its business or monitor the workplace. The court recognized “the considerable scope of an employer’s right to govern conduct and communications in the workplace.”

However, that right did not extend to “purely private matters that have no bearing on the employer’s legitimate interests,” even if the communications were prepared and stored on the company’s computer system.  … Even when we assume an employer may trespass to some degree into an employee’s privacy when buttressed by a legitimate business interest, we find little force in such a company policy when offered as the basis for an intrusion into communications otherwise shielded by the attorney-client privilege.”

What employers can do now

The lesson from Stengart: Employers may continue to monitor their computer, media and e-mail systems and discipline or terminate employees who misuse those systems.

The steps we outlined in “Check your policy! No privilege when e-mailing lawyer from work” still apply. Employers should establish computer and technology policies, distribute them to employees and enforce them.

However, having a company computer policy does not justify intruding upon conduct that is strictly private in nature and has no bearing on an employer’s legitimate business interests, particularly when the employee’s underlying conduct is protected by the attorney-client privilege.

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