Court Rules Communications with Attorney Using Work Computer are Protected as Privileged

Stengart v. Loving Care Agency, Inc., 2010 WL 1189458 (N.J. Mar. 30, 2010)
In this employment litigation, the Supreme Court of New Jersey addressed whether employees have a reasonable expectation of privacy as to attorney-client privileged emails sent and received on a work computer. The court held that under the circumstances presented, the employee/plaintiff did have a reasonable expectation of privacy as to emails with her attorney. Additionally, the court remanded the case to the trial court to determine what, if any, sanctions should be imposed upon defense counsel for reading and utilizing the emails at issue, despite indications that they were protected as privileged.

Maria Stengart, plaintiff, utilized her employer-provided laptop to access a personal, web-based, password-protected email account through which she communicated with her attorney regarding her situation at work (which eventually resulted in filing a complaint). Emails sent from her attorney indicated their privileged status. Upon leaving her position and filing her complaint, Stengart’s former employer, Loving Care Agency (“Loving Care”), hired experts to create a forensic image of Stengart’s laptop. The emails, which had been stored in the laptop’s temporary files, were recovered, passed on to counsel, and eventually utilized in the course of discovery. Upon learning of defense counsel’s possession of the emails, Stengart’s counsel demanded their immediate return. Defense counsel refused, and the issue went before the court. The superior court decided in favor of Loving Care and held that there was no breach of attorney-client privilege “because [Loving Care’s] policy placed Stengart on sufficient notice that her emails would be considered company property”. The appellate court held that the policy upon which the trial court relied could allow an objective reader to conclude that not all personal emails were company property and reversed the trial court. The issue was then appealed to the Supreme Court.

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Source: ediscoverylaw.com