Employer lent Employee an employer-owned laptop for use at home. Shortly before Employee resigned, she used the laptop to send and receive emails using her own email account to communicate with an attorney about suing Employer for discrimination. After Employee resigned (and returned the laptop), she sued Employer. Employer made an image of the laptops hard drive, and found the emails. Were the emails protected by the attorney-client privilege? That was the issue before the Court in Stengart v. Loving Care Agency, Inc., No. A-3506-08T1 (N.J. Super. App. Ct. June 26, 2009) (unpublished). The Court held that the emails were protected:
- It was not clear that Employer had adopted and promulgated an electronic communications policy, Slip Op. at 4-8;
- It was not clear that the purported policy applied to emails sent from a personal account, Slip Op. at 8-12;
- As applied,the purported policy to personal email was unenforceable because it did not further any legitimate business of Employer, Slip Op. at 13-23; and
- The policy was unenforceable because it intruded on the attorney-client privilege:
In weighing the attorney-client privilege, which attaches to the emails exchanged by plaintiff and her attorney, against the company's claimed interest in ownership of or access to those communications based on its electronic communications policy, we conclude that the latter must give way. Even when we assume an employer may trespass to some degree into an employee's privacy when buttressed by a legitimate business interest, we find little force in such a company policy when offered as the basis for an intrusion into communications otherwise shielded by the attorney-client privilege.
Slip Op. at 25-26 (emphasis added).
Hat-tip to Mike Frisch, Legal Profession Blog (No Right to Rummage).
posted by Gary Rosin