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Check your policy! No privilege when e-mailing lawyer from work

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in Employment Law,HR Management,Human Resources,Leaders & Managers,Management Training

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 management position in late 2007. She soon filed a lawsuit against the company, alleging she was constructively discharged as the result of a hostile work environment.

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.

Handbook privacy policy

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.

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Michael Fortunato, a law clerk at Genova, Burns & Vernoia, assisted in the preparation of this article.

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