Case Summary
Stengart v. Loving Care Agency, Inc., 2009 N.J. Super. LEXIS 143 (App.Div. June 26, 2009).
A company that by policy claimed to own everything on its computers did not have the right to review or retain privileged email of an employee with her attorney on a company laptop sent through a private, password protected email account.
Plaintiff filed a New Jersey Law Against Discrimination action against her former employer. Prior to resigning from her executive position with defendant, she had corresponded by email with her attorney about her lawsuit through her company-issued laptop using her personal, web-based, password-protected Yahoo email account. An attorney for the employer reviewed plaintiff’s browsing history on a mirror image of the laptop hard drive and read “numerous” email messages between plaintiff and her attorney. The employer’s attorney did not alert plaintiff’s attorney to the messages. Several months later, the employer included some of the email in its discovery responses. The trial court denied plaintiff's motion for an order to return the email because plaintiff was on notice that her email was property of the employer.
The court reversed the trial court's decision and ordered the employer and its attorney to turn over all email communications between plaintiff and her attorney and to delete all such email from computer hard drives. The court also ordered a hearing on appropriate sanctions and whether the employer's law firm should be disqualified from further representation of the employer in the matter. The court explained that "an employer's rules and policies must be reasonable to be enforced" and must "concern the terms of employment." Although the employer's policy provided that email was part of the employer's business records and was "not to be considered private or personal to any individual employee," employees were permitted under the policy to make "occasional personal use" of employer computers. Plaintiff had a reasonable expectation of privacy regarding that occasional personal use especially regarding communications protected by the attorney-client privilege. The court concluded that "the policies undergirding the attorney-client privilege substantially outweigh the employer's interest in enforcement of its unilaterally imposed regulation," and it rejected "the employer's claimed right to rummage through and retain the employee's emails to her attorney."
Plaintiff filed a New Jersey Law Against Discrimination action against her former employer. Prior to resigning from her executive position with defendant, she had corresponded by email with her attorney about her lawsuit through her company-issued laptop using her personal, web-based, password-protected Yahoo email account. An attorney for the employer reviewed plaintiff’s browsing history on a mirror image of the laptop hard drive and read “numerous” email messages between plaintiff and her attorney. The employer’s attorney did not alert plaintiff’s attorney to the messages. Several months later, the employer included some of the email in its discovery responses. The trial court denied plaintiff's motion for an order to return the email because plaintiff was on notice that her email was property of the employer.
The court reversed the trial court's decision and ordered the employer and its attorney to turn over all email communications between plaintiff and her attorney and to delete all such email from computer hard drives. The court also ordered a hearing on appropriate sanctions and whether the employer's law firm should be disqualified from further representation of the employer in the matter. The court explained that "an employer's rules and policies must be reasonable to be enforced" and must "concern the terms of employment." Although the employer's policy provided that email was part of the employer's business records and was "not to be considered private or personal to any individual employee," employees were permitted under the policy to make "occasional personal use" of employer computers. Plaintiff had a reasonable expectation of privacy regarding that occasional personal use especially regarding communications protected by the attorney-client privilege. The court concluded that "the policies undergirding the attorney-client privilege substantially outweigh the employer's interest in enforcement of its unilaterally imposed regulation," and it rejected "the employer's claimed right to rummage through and retain the employee's emails to her attorney."
