A recent decision by the Appellate Division in New Jersey in the matter of Stengart v. Loving Care Agency, Inc ., No. BER-L-858-08, has held up the rights of an employee whose private, personal email to her lawyer had been stored by the employer. The employee had sent emails to her attorney from her work computer, using a personal, password protected email address that was separate from her work email. When the employee later resigned and brought a suit against the company, the employer had made a digital copy of her work laptop, including the emails sent from her private email account.
When the defense attorneys were required to respond to the interrogatories sent by the plaintiffs, the attorneys for the employer included these emails between the employee and her attorneys. Upon seeing these emails, the plaintiff’s attorneys demanded all copies of what they believed to be privileged information between an attorney and client- one of the most fundamental principles of the attorney-client relationship.
The lower trial judge in the court upheld the employers belief that their policy of owning all documents and products that are produced on employer owned computers included these emails from the employee to her attorney, and that she had no reasonable expectation of privacy. However, upon appeal and review of the employer’s policy, the appellate judge found for the client and sent the case back to the lower court, this time treating those emails as privileged communication under attorney/client privilege.
This decision is interesting, in that it shows the competing interests between workplace policies regarding computers and web technology, as well as the need to maintain a strong attorney/client confidentiality privilege. This decision is a victory for employees in New Jersey, and its influence will hopefully spread as employees start to challenge unfair and unreasonable policies of employers.