Posted 06-09-2010

In a Spring, 2010 opinion, the New Jersey Supreme Court unanimously held that the attorney-client privilege applied to e-mails sent by an employee to her personal lawyer, using a password-protected web-based personal e-mail account on an company laptop, even though the employer had a policy stating that the employee should have no expectation of privacy in e-mail sent using company equipment.

Marina Stengart was preparing to sue her employer for discrimination, and sent e-mails to her attorney about the case from her employer-issued laptop, using a personal Yahoo! web-based e-mail account. After Ms. Stengart resigned from her job and brought suit, the company hired a computer forensic expert to recover all files stored on the laptop. Among the files that the expert turned up were copies of some of the e-mails that Ms. Stengart’s web browser had automatically saved to the computer’s hard drive. The company’s attorneys reviewed the e-mails and used information from them during discovery. When Ms. Stengart’s lawyer found out, he sought to have the e-mails returned under the attorney-client privilege, and to have the company’s attorneys brought up on ethics charges.

As you would expect, the employer argued that its electronic communications policy, which allowed employees incidental personal use of its computer system but reserved the right to “review, audit, intercept, access, and disclose all matters on the company’s media systems and services at any time, with or without notice,” eliminated any expectation of privacy Ms. Stengart might have had in the e-mails. Despite that policy, the court found that, given the strong public policy concerns that underlying the attorney-client privilege, the e-mails were in fact privileged, and should not have been reviewed or used by the company. The court did note that an employee could still be disciplined under company policy for spending excessive time communicating with a personal attorney during the work day, even though the employer should not be able to review the content of the communications.

What this means to you:

  • Review your organization’s internet policy and make sure that you reserve the right to monitor employees’ use of employer internet resources, including the sending and receiving of personal, web-based e-mail. Explain that e-mails sent through a personal web-based e-mail account can end up being stored on company equipment.
  • If your policy allows “occasional” personal use of computer systems, emphasize that any use of electronic resources that rise above the level of “occasional” use can lead to discipline.
  • Instruct IT employees who monitor electronic communications not to review personal attorney-client privileged communications but, rather, to bring such communications to the attention of legal counsel to review in accordance with the applicable ethical rules.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.