N.J. Ruling on Workplace E-Mail Privacy Sure to Impact Forensics

Back in June 2009, I posted about Stengart v. Loving Care Agency, et al., a New Jersey appellate decision that found an expectation of privacy in remnants of an employee's e-mail with her counsel found on a workplace computer.  This, despite a company policy advising employees that they shouldn't expect any (okay, not much) privacy.  I thought it a case that would resonate beyond the Garden State.  Now, I'm sure of it.

Yesterday, the New Jersey Supreme Court upheld Stengart, issuing a thoughtful opinion making it clear that the information was not only privileged but that the lawyers who sought and used the information now face discipline and possible disqualification. 

Like any lawyer, as I read the opinion and its discussion of the policy language, the gears were turning in my head trying to fashion langauge that might protect the employer next time.  Then, the Court added this:

"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."
 Stengart, Sec. V (B)

Wow!  No language would have sufficied.  This decision just made computer forensics on employer-owned machines in New Jersey a risky proposition should it turn up attorney-client chatter. 

Practice Tip:  Do the forensics, but be certain to instruct the examiner to segregate anything that even smacks of a privileged communication and not share it with counsel.  Then--if you look at it at all--look only long enough to know if it might be privileged and stop to notify opposing counsel.  Better yet, have the examiner send it to the other side for you and let your opponent assert their objections.  Treat it like anthrax spores, unless you want to be hauled up on charges. Though this applies to employee web mail recovered using forensics, you'd be wise to treat privileged mail using the company accounts with the same caution.

Plus, though it was the attorney-client privilege at issue in Stengart, it's hard to imagine that it wouldn't extend to other privileged communications, e.g., spousal, medical and clergy.  Beware e-mails to the employee's better half et al.

Comments

[Ralph Losey]

Good article, as usual. Could you elaborate on why you go on to say:

"Though this applies to employee web mail recovered using forensics, you'd be wise to treat privileged mail using the company accounts with the same caution."

I have not studied the opinions yet, but will do so soon and wondered what causes you to think it will likely be extended in this way? Seems like a big jump.