New Jersey employers have every right to monitor their employees' e-mail messages and computer usage so long as they have a strong electronic communications policy. That's true even if the content might otherwise fall under attorney-client privilege.
The trick: Make sure your policy states that the organization—not the employee—owns the information and may access it at any time. Track when and how you notify employees of the policy. Best practice: Require all employees to sign a copy, acknowledging they read and understood the rules.
Recent case: Carol Kaufman used her company-provided laptop to exchange e-mail with her attorney. After she quit, she filed a breach of contract claim. The company searched her old laptop and reconstructed her message. Kaufman cried foul, alleging the e-mails were privileged communications between her and her attorney.
No so, said a federal court. It said Kaufman waived her attorney-client privilege because she knew about the electronic-communications policy, which said the company owned the messages and could inspect them at any time. (Kaufman v. SunGard Investment Systems, No. 05-CV-1236, DC NJ, 2006)
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