Attorney-Client Privilege Protects Plaintiff’s E-Mails to Attorney from Her Personal E-Mail Account, Using Employer’s Computer

Stengart v. Loving Care Agency, Inc., No. A-3506-08T1 (App. Div., June 26, 2009) – In yet another decision in the developing law regarding an employer’s right to access employees’ e-mails, the Appellate Division held that an employee’s e-mails with her attorney using the company’s computer, but sent from her personal e-mail account, were privileged under the attorney-client privilege, and that the company’s broadly worded computer monitoring policy did not give the company the right to access such e-mails. Balancing the employer’s right to create and enforce an electronic communications policy in the workplace against the public policies underlying the attorney-client privilege, the court concluded the policies imposed by an employer must be reasonable to be enforced, and there must be a nexus between the policy enacted and a legitimate business interest of the employer. The court specifically rejected the idea that a company’s ownership of a computer is the sole determinative factor in deciding whether an employee’s personal communications become the company’s property.

Note: This article was published in the July 2009 issue of the New Jersey eAuthority.