You may have seen yesterday’s Star Ledger which reported that the New Jersey Supreme Court heard arguments in Stengart v Loving Care Agency, the case where an employee corresponded with her lawyer through her personal e-mail account on a company-owned laptop. The question is, was that communication protected by the attorney-client privilege? What do you think?
Stengart v Loving Care Agency, Inc
On March 30, 2010, the New Jersey Supreme Court affirmed the Appellate Court’s decision in favor of the employee. In critical part, the Supreme Court held that an employee who communicates with her attorney through her personal, password-protected, web-based Yahoo e-mail account has a reasonable expectation that that communication would remain private, and that sending and receiving those communications using a company laptop did not prevent the attorney-client privilege from attaching nor did she waive the privilege by sending the communications in that manner. On the venerability of the attorney-client privilege in this country, the Court made a tremendous statement when it said: “Our conclusion that Stengart had an expectation of privacy in e-mails with her lawyer does not mean that employers cannot monitor or regulate the use of workplace computers. Companies can adopt lawful policies relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies. . . . But employers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy. Because of the important public policy concerns underlying the attorney-client privilege, even a more clearly written company manual — that is, a policy that banned all personal computer use and provided unambiguous notice that an employer could retrieve and read an employee’s attorney-client communications, if accessed on a personal, password-protected e-mail account using the company’s computer system — would not be enforceable.”
Wow!
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