A New Jersey court has held that e-mails employees send to their attorneys via work computers are not protected by the attorney-client privilege.
Attorney-client privilege is one of the most well-established rights to confidentiality. The court’s willingness to rule that an employer’s right to control how employees use its computer equipment trumps attorney-client privilege is significant. The decision makes it clearer than ever that employers should carefully consider the language they use in their employee handbooks.
Where did it come from?
Maria Stengart, the plaintiff in Stengart v. Loving Care Agency (Docket No. BER-L-858-08, N.J. Super. Law Div., 2009), resigned from her
Before resigning, Stengart had exchanged e-mails with her attorney using her company-issued laptop computer. She did not, however, send the e-mails through her company e-mail address. Instead, she transmitted them from her personal Yahoo.com e-mail account, which she maintained and used sporadically during business hours. Yahoo e-mail accounts are web-based, with no software to download, and are password protected.
Loving Care and its attorneys made a copy of the laptop’s hard drive and took it to a company specializing in forensic recovery, including the retrieval of deleted information. During the discovery phase of the litigation, the company stated it had obtained information in “E-mail correspondence from (plaintiff’s) office computer.”
Stengart and her attorneys then filed a motion with the court, arguing that Loving Care and its lawyers had breached the plaintiff’s attorney-client privilege. They asked that all e-mail correspondence be surrendered.
Loving Care refused to comply, arguing that the content was not protected because Stengart waived attorney-client privilege when she used her company computer to communicate with her lawyer.
The determining factor in the case was the existence of several provisions in Loving Care’s employee handbook. The most significant was the following:
“E-mail and voice mail messages, internet use, and communication and computer files are considered part of the company’s business and client records. Such communications are not to be considered private or personal to any individual employee.”
Nothing prohibits an employer from setting policy that its technology resources are considered company property and that e-mail communications made from a company’s computer carry no expectation of privacy.
Because Loving Care’s policy statement adequately warned Stengart not to expect privacy in electronic communications generated from her employer’s computer, the trial court held that the e-mail was not protected by the attorney-client privilege.
Moreover, the fact that employers or supervisors condone prohibited behavior—personal use of company computers—from time to time isn’t an adequate employee defense. Stengart claimed she was allowed to use her private Yahoo account, without objection from Loving Care. The court determined that this did not have any bearing on the case, as she was aware that Internet content became part of the company’s records.
Michael Fortunato, a law clerk at Genova, Burns & Vernoia, assisted in the preparation of this article.
Like what you've read? ...Republish it and share great business tips!
Attention: Readers, Publishers, Editors, Bloggers, Media, Webmasters and more...
We believe great content should be read and passed around. After all, knowledge IS power. And good business can become great with the right information at their fingertips. If you'd like to share any of the insightful articles on BusinessManagementDaily.com, you may republish or syndicate it without charge.
The only thing we ask is that you keep the article exactly as it was written and formatted. You also need to include an attribution statement and link to the article.
" This information is proudly provided by Business Management Daily.com: http://www.businessmanagementdaily.com/9327/check-your-policy-no-privilege-when-e-mailing-lawyer-from-work "