Business Litigation, Professional Liability, Publications

Email Communications Between Attorney and Employee on Employer-Issued Computer Using Personal Web-Based Account Are Privileged

January 1, 2013

Employees’ use of personal email accounts (e.g., Yahoo, Gmail, etc.) on employer-issued computers is standard practice in most work environments.  These email accounts come with personal identifications and passwords that are generally only known by the employee.  What many employees do not realize is that copies of nearly every web page they visit on their employer’s computer (including those pages containing their personal emails) are saved on a cache folder of temporary internet files that can later be retrieved.

Many employees communicate with their personal attorneys using their personal email accounts expecting that their communications are private and will not be seen by others.  However, employers are many times able to access these email communications between their employees and attorneys using forensic imaging and analysis. Are these email communications between an employee and his or her attorney on an employer-issued computer using a web-based account privileged?

The Supreme Court of New Jersey recently analyzed this issue in Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (N.J. Sup. Ct. 2010) and concluded that such communications are privileged.  In Stengart, the plaintiff was a former employee who sued Loving Care for employment discrimination.  Prior to leaving Loving Care, the plaintiff accessed her Yahoo web-based email account using her company-issued computer and exchanged emails with her attorney.  After the plaintiff left Loving Care, the company hired an expert to create a forensic image of the computer’s hard drive (including temporary internet folders) and discovered the contents of seven or eight emails between the plaintiff and her lawyer.  The plaintiff filed a motion seeking the return of the emails that the trial court denied because it concluded that the attorney-client privilege was waived by sending the emails on a company computer.  The appellate division reversed that decision and the New Jersey Supreme Court affirmed the appellate division’s ruling.

The court in Stengart initially discounted Loving Care’s claim that their Electronic Communications Policy contained in their employee handbook prevented any claim or expectation of privacy regarding the plaintiff’s emails with her lawyer.  The court noted that the policy prohibited certain uses of “the email system” and did not address personal email accounts.  Nor did the policy warn employees that the contents of personal emails are stored on their computer’s hard drives and may be forensically retrieved by Loving Care.  The court thus concluded that the policy was ambiguous and not “entirely clear.”  The court also noted that the emails from the plaintiff’s attorney contained a standard warning that their contents are personal and confidential and may constitute attorney-client communications.  Based upon these facts and the facts that the plaintiff used a “personal, password-protected e-mail account instead of her company e-mail address and did not save the accounts password on her computer,” the plaintiff had a subjective expectation and an objectively reasonable expectation of privacy concerning her communications with her attorney.

Interestingly, although not presented in the case before it, the court went on to state later in its opinion that “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 email account using the company’s computer system—would not be enforceable” given the important public policy concerns underlying the attorney-client privilege.  The court did state, however, that a company could still employ and enforce policies to discipline employees.  The court noted as an example that “an employee who spends long stretches of the workday getting personal, confidential legal advice from a private lawyer may be disciplined for violating a policy permitting only occasional personal use of the internet…but employers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy.”

Of course, the court’s decision in Stengart is limited to communications between an employee and his or her attorney using a web-based email account.  As other courts have ruled, an employee who uses his or her company email account to communicate with his or her attorney almost certainly forfeits any claim to privilege concerning those communications.

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