Although the recent Quon decision from the US Supreme Court does not directly deal with the issue of attorney-client privilege, recent cases have raised the question whether attorney-client privilege can be preserved when an employee uses company computers and telecommunications systems to communicate with counsel.
Perhaps not surprisingly, given rapidly changing technology, culture, and business practices, no consistent answer appears.
Attorney-client privilege generally aims to shield confidential communications between attorneys and their clients, made for purposes of obtaining legal advice. The notion is that protection of such communications will encourage clients to obtain (and follow) competent legal advice. A client may waive the privilege by deliberately disclosing communications to a third party. Thus, if you send a letter received from your lawyer to The New York Times, the letter is no longer privileged. Similarly, if a client fails to take reasonable steps to protect the confidentiality of communication (by shouting to counsel across a crowded room, for example), privilege protection is lost.
What, then, of the circumstance where an employee uses company computers to communicate with a lawyer? Two recent decisions, in neighboring states, have reached opposite conclusions.
In Stengart v. Loving Care Agency, Inc. 2010 WL 1189458 (N.J. App. Div. March 30, 2010), www.jdsupra.com, a New Jersey appeals court held that a company did not have the right to review an employee’s attorney-client email communications, where they resided on a personal, password-protected, Web-based email account, even though the employee used the company’s computer systems to send such emails.
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By: Steven C. Bennett