E-Mails to Attorney From Work Computers Considered Privileged
A New Jersey Supreme Court recently ruled that e-mails sent through a work computer are considered privileged.
An employee at a care center recently took this case to the state’s high court after a lower court rejected her privacy claim. Plaintiff Maria Stengart had been contacting an attorney via e-mail on a work laptop to discuss a situation at her employer at the time, Loving Care Agency. After leaving the employer, it confiscated the computer and forensically made copies of all e-mails that were placed as temporary files on the computer, including the messages to the attorney. Once the plaintiff learned of the agency having copies of the files, she wanted them returned but the agency refused, thus resulting in the case going to court.
The first court case on the issue ruled in favor of Loving Care because the laptop was company property and Stengart knew that. An appelate court ruled differently, so the case went on the state’s high court.
The New Jersey Supreme Court said that while companies have every right to maintain their reputations through policies regarding email, “employers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy. Because of the important public policy concerns underlying the attorney-client privilege, even a more clearly written company manual–that is, a policy that banned all personal computer use and provided unambiguous notice that an employer could retrieve and read an employee’s attorney-client communications, if accessed on a personal, password-protected e-mail account using the company’s computer system–would not be enforceable.”
While the case does give a positive push for the eDiscovery field, employees should be careful when sending e-mails to attorneys on company-owned laptops. Though Stengart did use a password-protected email account to send the e-mails to her attorney, the e-mails were saved on a temporary files folder on the computer, which allowed for the e-mails to be found. Employees and lawyers should continue to try to communicate over e-mail on their personal computers if possible. Even though e-mails between attorneys and clients are confidential, another party can still recover the files if left on a work computer.
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