Employees’ Private Communications With Lawyers on Company Computers Protected By Attorney-Client Privilege

On June 26, 2009, in Stengart v. Loving Care Agency, Inc., New Jersey’s Appellate Division ruled that confidential emails employees send to their lawyers using company computers are protected by the attorney-client privilege.

Under the attorney-client privilege, communications made in confidence between lawyers and their clients in the course of their professional relationship are privileged. The primary reason for the attorney-client privilege is to encourage clients to engage in a full and free disclosure of information with their lawyers.

In Stengart, employee Marina Stengart was still working for Loving Care Agency, Inc., when she emailed an employment lawyer about her potential discrimination case. She sent emails to her attorney, using her private Yahoo email address, from her company-issued laptop.

After Ms. Stengart left Loving Care and filed a lawsuit, the company created a forensic image of her computer’s hard drive. The lawyers representing Loving Care discovered numerous communications between Ms. Stengart and her lawyers in her computer’s Internet browsing history. When Ms. Stengart’s lawyers learned that Loving Care had copies of many of her emails to them, she asserted the attorney-client privilege and demanded that Loving Care return them to her. She also sought to disqualify Loving Care’s lawyers since they had unfair access to her privileged communications with her lawyers.

Prior to the appeal, based on the company’s electronic communications policy, the trial court ruled that Ms. Stengart did not have a reasonable expectation of workplace privacy when she used her company laptop to communicate with her lawyers. Accordingly, it found that the emails were not protected by the attorney-client privilege.

However, the Appellate Division disagreed. It ruled that it was unclear whether the company’s electronic communications policy prohibit Ms. Stengart from using her company laptop to email her lawyers, since it expressly permitted some personal use.

More importantly, the appellate court also found that, even if Ms. Stengart had violated the company’s email policy, the attorney-client privilege outweighed her employer’s interest in enforcing its electronic communications policy. It noted that while employee handbooks can create binding employment contracts, New Jersey courts will not enforce unreasonable workplace rules and policies. More specifically, courts will only enforce employment policies if they advance the “legitimate business interests of the employer.” Accordingly, the Appellate Division rejected what it described as “the employer’s claimed right to rummage through and retain the employee’s emails to her attorney.”

The Court noted that people conduct many personal and confidential transactions via the Internet, including accessing private medical records, viewing bank account data and telephone records, filing tax returns, and emailing attorneys about confidential matters. It indicated that those individuals have a reasonable expectation that their private communications will remain private, even if they review the private information on a company computer. However, the Court made it clear that companies are entitled to monitor whether their employees are performing non-business activities that distract them from their work, and can discipline employees who engage in personal matters during working hours.