Q. After a recently terminated employee sued our company for discrimination, we undertook a forensic examination of her work-issued laptop. We were looking for potential evidence to defend against the lawsuit. We found, saved in the cache of the web browser, e-mails she sent to her attorney from her web-based, personal and private e-mail account. Can we use these e-mails in the lawsuit?
A. Probably not, if other states follow the recent decision of the New Jersey Supreme Court in Stengart v. Loving Care Agency. In that case, the court said no matter the policy you have in place, an employee enjoys an expectation of privacy in personal, web-based, password-protected e-mails sent via a workplace computer to a personal attorney.
The best you can do—on a going-forward basis—is adopt and enforce policies relating to computer use to protect the assets, reputation and productivity of your business.
For example, you can adopt a policy permitting only occasional personal Internet use. And, you can discipline an employee under that policy for spending long stretches of the workday receiving personal, confidential legal advice from a private e-mail account. The specific content of the e-mails, however, probably remains off-limits.
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