Employee Waived Attorney-Client Privilege by Sending E-Mails on Company Computer

Stengart v. Loving Care Agency, Inc., No. BER-L-858-08 (Superior Court, Law Div., March 6, 2009) – In a case of first impression in New Jersey, a Bergen County judge recently held that a former employee’s e-mails to her attorney using a personal, password protected, web-based e-mail account, from a company-issued laptop using the company network, are not protected by the attorney-client privilege.

The plaintiff had e-mailed her attorney during business hours prior to resigning and filing suit for hostile work environment. The employer’s forensic examiners uncovered temporary Internet files containing the contents of her e-mails while imaging her laptop’s hard drive to preserve evidence for discovery. When the e-mails were produced to the plaintiff, she moved for sanctions and to disqualify the employer’s attorneys for ethical violations. Analyzing decisions from other jurisdictions, the court relied heavily upon the existence of the employer’s electronic communication policy, which cautioned that all company technology is considered company assets, and that all e-mail, voice mail, Internet use, communication and computer files are considered company business and are not private to any employee. As plaintiff was aware of the policy and knew she was subject to it, the court determined any expectation of privacy she might otherwise have enjoyed had been waived.

This decision underscores the need for employers to implement and disseminate a comprehensive electronic communication policy which places employees on notice that there is no expectation of privacy in any information transmitted using company equipment or resources, on company time. All employers should take this opportunity to review and update their current policies or implement one if needed.

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