The Appellate Division has swung the pendulum back towards employers in Fazio v. Temporary Excellence, Inc., No. A-5441-08T3 (N.J. App Div., Feb. 2, 2012), on the topic of whether emails sent by an employee to his attorney, while using a company computer and network, are protected by the attorney-client privilege. In Fazio, the employee sent several emails to his attorney using his company computer and company email system, emails which the employee later claimed should have been barred from evidence based upon the attorney-client privilege. Contrasting the Supreme Court’s employee-friendly Stengart decision (see the April 2010 issue of the New Jersey eAuthority) – which attached the privilege to emails sent from a company computer through an employee’s password-protected personal email account – the Appellate Division here ruled that the emails in question were not protected by the privilege. Notwithstanding that the company had no email policy, the Appellate Division explained that “unlike the employee in Stengart, plaintiff took no steps whatsoever to shield the e-mails from his employer. Instead, he repeatedly sought legal advice… using his employer’s own email system on its own computer equipment, and did not password-protect those communications. Under these circumstances, he had no reasonable subjective expectation of privacy.”
