Employee’s Communications Protected by Attorney-Client Privilege Despite Use of Work Computer

Stengart v. Loving Care Agency, Inc., 973 A.2d 390 (N.J. Sup. Ct. 2009)

Reversing the trial court, the appellate court found that an employee’s communications with her attorney via her personal email account were privileged despite the use of her work computer to send those communications.  The trial court previously ruled that the communications were not privileged as a result of the employee’s use of her work computer, in light of her employer’s policy that, according to the trial court, “put plaintiff on sufficient notice that her emails would be viewed as company property.”  In reversing the trial court, the appellate court found that “the policies undergirding the attorney-client privilege substantially outweigh the employer’s interest in enforcement of its unilaterally imposed regulation.” 

Prior to her resignation, plaintiff communicated with her attorneys regarding a suit against her employer using her personal email account accessed through her work computer.  After plaintiff filed suit, her former employer made a forensic copy of her hard drive.  Thereafter, the employer’s counsel accessed and read those emails and then included portions in the discovery responses. Plaintiff objected, arguing the emails were protected by attorney-client privilege.  The trial judge rejected plaintiff’s argument reasoning that the employer’s electronic communications policy put plaintiff on notice that her emails would be viewed a company property.  Plaintiff appealed.

Reversing the trial court, the appellate court identified several factual disputes which cast doubt on the propriety of the trial court’s ruling, including;

– disagreement as to whether the policy was ever formalized, adopted and disseminated,
– a question as to whether the policy applied to executives, and
– a question as to the scope of the regulation, i.e., did it include private email accessed through a personal account.

According to the appellate court, the trial court’s failure to hold an evidentiary hearing to settle these questions would ordinarily “be cause alone to reverse.”  However, the appellate court noted that there were additional reasons for reversal and proceeded with an analysis of the enforceability of the policy in the circumstances before it.  Such analysis, according to the appellate court, “require[d] a balancing of the company’s right to create and obtain enforcement of reasonable rules for conduct in the workplace against the public policies underlying the attorney-client privilege.”

Rejecting the employer’s argument that its ownership of the computer was the “sole determinative factor in determining whether an employee’s personal emails may become the company’s property,” the court “agreed with the tenor” of another recent opinion and stated:

Property rights are no less offended when an employer examines documents stored on a computer as when an employer rifles through a folder containing an employee’s private papers or reaches in and examines the contents of an employee’s pockets indeed, even when a legitimate business purpose could support such a search, we can envision no valid precept of property law that would convert the employer’s interest in determining what is in those locations with a right to own the contents of the employee’s folder of private papers or the contents of his pocket.  As a result, we conclude a breach of a company policy with regard to the use of its computers does not justify the company’s claim of ownership to personal communications and information accessible therefrom or contained therein.

Again comparing the company’s policy to other intrusions into an employee’s privacy, the court later stated:

Although plaintiff’s emails to her attorney related to her anticipated lawsuit with the company, the company had no greater interest in those communications than it would if it had engaged in the highly impermissible conduct of electronically eavesdropping on a conversation between plaintiff and her attorney while she was on a lunch break.

The court went on to find that the policy in question furthered “no legitimate business interest.”  The appellate court was careful, however, to note that it made “no attempt to define the extent to which an employer may reach into an employee’s private life…” but pointed out that the willingness of courts to enforce unilaterally imposed regulations was not limitless.

Following its discussion of the venerability of the attorney-client privilege, the court found that “in weighing the attorney-client privilege…against the company’s claimed interest in ownership or access to those communications based on its electronic communications policy, we conclude that the latter must give way.”

The judgment of the trial court was reversed and remanded.