June 26, 2009
No Right To Rummage
The New Jersey Appellate Court has issued a decision concerning an employee's rights with respect to emails sent to her attorney on a computer provided by the employer:
...we address whether workplace regulations converted an employee's emails with her attorney-- sent through the employee's personal, password-protected, web based email account, but via her employer's computer--into the employer's property. Finding that the policies undergirding the attorney-client privilege substantially outweigh the employer's interest....we reject the employer's claimed right to rummage through and retain the employee's emails to her attorney.
The employee had been the employer's executive director of nursing and had filed claims of discrimination against her former employer. Counsel for the employer was able to obtain the emails by extracting and creating a forensic image of the computer hard drive. The emails were discovered while reviewing the employee's Internet browsing history. Counsel then used some of the emails in its papers and fought disclosure of the material to plaintiff.
The court discusses the ethical obligations imposed by DR 4.4(b), which obligates counsel to cease reading known privileged documents, notify and return the documents to the adverse attorney. Rather, here:
[the law firm] appointed itself the sole judge of the issue and made use of attorney-client emails without giving plaintiff an opportunity to advocate a contrary position.
The court remanded the matter for a determination whether the employer's attorneys should be disqualified as a result of reviewing the emails and directed the employer to provide all recovered emails to the employee. There is also an extended discussion of the impact of company computer policies on the issues presented. (Mike Frisch)
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