NJ Rules Attorney-Client Privilege Trumps Corporate Email Policies for Employees

The New Jersey Supreme Court issued and opinion at the end of March that has implications for workplace privacy, particularly in personal emails.  The case is Stengart v. Loving Care Agency (A-16-09, March 30, 2010).  Marina Stengart filed suit against her employer, Loving Care, on employment discrimination grounds.  Loving Care issued a laptop to Stengart in the course of her employment and maintained a policy on acceptable use and system monitoring.  Stengart also used the machine to access her personal Yahoo email account, which included communications to and from her lawyer concerning the employment discrimination suit. She later left the company and turned in her laptop. 

Loving Care hired a forensic expert to examine the hard drive in anticipation of litigation. They discovered "seven or eight" emails in the browser cache that were part of her communications with her lawyer.  The firm attorneys disclosed the documents and used information from those emails to frame discovery requests.  Stengart and her lawyer filed an action to have the emails returned under the attorney client privilege.  The emails were labeled with the usual confidentiality and privilege.  Loving Care argued that the policy controlled and as such, the confidentiality was waived. 

From the opinion:

The proffered Policy states, in relevant part:

The company reserves and will exercise 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.

. . . .

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.

The principal purpose of electronic mail (e-mail) is for company business communications. Occasional personal use is permitted; however, the system should not be used to solicit for outside business ventures, charitable organizations, or for any political or religious purpose, unless authorized by the Director of Human Resources.

The Policy also specifically prohibits "[c]ertain uses of the e-mail system" including sending inappropriate sexual, discriminatory, or harassing messages, chain letters, "[m]essages in violation of government laws," or messages relating to job searches, business activities unrelated to Loving Care, or political activities. The Policy concludes with the following warning: "Abuse of the electronic communications system may result in disciplinary action up to and including separation of employment."

The Court and commented on its vagueness in relation to personal emails generated via a non-company system.  Precedent from New York and Massachusetts suggested no privacy, but these cases involved company systems.  The Court concluded that Stengart had a reasonable expectation of privacy because the policy was ambiguous for the type of use; Stengart never saved her Yahoo password to the machine; there was no notice or suggestion in the policy that the machine could be subject to a forensic examination; and the nature of the the communications.  The Court said that the company could write more explicit language, though any language that attempted to waive the attorney-client privilege would not be enforceable.  The case was sent back to the trial court to determine whether Loving Care's attorneys should be sanctioned. 

The decision is available here and was unanimous.  I imagine scriveners across New Jersey will be pouring over their company employment policies in light of the case.  [MG]