Originally published April 15, 2010
In a case that should serve as a strong incentive for employers to review and update their electronic communications policies, the New Jersey Supreme Court recently held that an employer was not entitled to read a series of e-mails between an employee and her attorneys, even though the e-mails were stored on the employee's company-issued laptop.
In Stengart v. Loving Care Agency, Inc., the plaintiff, an employee of the defendant, was issued a company laptop and e-mail address. Before her resignation, the plaintiff communicated with her attorney about a potential lawsuit against the employer using her personal, password-protected Yahoo e-mail account. The plaintiff accessed her personal e-mail account from her company-issued laptop, evidently not realizing that this resulted in copies of her privileged e-mails being stored on the laptop's hard drive. After the plaintiff filed an employment discrimination claim, the employer created a mirror image of the laptop and searched its contents for useful evidence. During this process, the employer and its attorney discovered and read several of the e-mails between plaintiff and her attorneys. The employer asserted that the e-mails were not protected by the attorney-client privilege because the company's electronic communications policy notified the plaintiff that any e-mails that she sent or received on her company laptop would be treated as company property, effectively waiving her right to claim privilege.
The court disagreed, finding that the attorney-client privilege was not waived despite the employer's policy. The court observed that although the policy clearly stated that all communications sent via the employer's systems belonged to the employer and that employees had no expectation of privacy for such communications, the policy also allowed for "occasional personal use." Because of this ambiguity, the court held that the policy was insufficient to overcome the plaintiff's reasonable expectation of privacy because she could interpret "occasional personal use" as suggesting that e-mail sent via her personal web-based e-mail account were distinguishable from business-related communications and, therefore, privileged communications.
While Stengart was decided under New Jersey law and is not binding in other states, the case has garnered substantial attention in legal circles, and other courts may well adopt the same reasoning. The lessons for employers are clear. First, employers should review and revise their electronic communications policies regularly to ensure that they are up to date with recent developments in the law. Second, in light of this case, employers should ensure that their policies clearly address employee use of employer-provided systems to access personal e-mail accounts or internet services. Critically, the policy should either prohibit such personal use or make it clear that the employee waives any expectation of privacy when they use an employer's systems to access personal e-mail or other accounts.
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