Order Description
Did Scott have a right to privacy in e-mails he sent to his lawyer using the BI system?
Which provision of the Electronic Communication Privacy Act applies to Scott’s e-mails?
Scott was e-mailing his lawyer, so the content of the e-mails should be privileged by the attorney-client privilege. Should that “trump” the employer’s right to monitor his e-mail?
What should Scott have done differently?
Now read the Stengart case below. After reading the case, answer the following question:
Both Scott and Stengart were e-mailing their lawyers, so the content of the e-mails should be protected by the attorney-client privilege. But the decisions reached opposite results. What is the legal reason for the difference?
Both Scott and Stengart were e-mailing their lawyers, so the content of the e-mails should be protected by the attorney-client privilege. But the decisions reached opposite results. What is the legal reason for the difference?
Stengart v. Loving Care Agency, Inc., 2009 N.J. Super. LEXIS 143 (App.Div. June 26, 2009).
Facts: Stengart filed a New Jersey Law Against Discrimination action against her former employer, Loving Care Agency, Inc. Before resigning from her position with defendant, she had corresponded by email with her attorney about her lawsuit through her company-issued laptop using her personal, web-based, password-protected Yahoo email account. An attorney for the employer reviewed plaintiff’s browsing history on a mirror image of the laptop hard drive and read “numerous” email messages between plaintiff and her attorney. The employer’s attorney did not alert Stengart’s attorney that he had read the messages. Several months later, the employer included some of the email in its discovery responses. The trial court denied plaintiff’s motion for an order to return the email because plaintiff was on notice that her email was property of the employer.
Issue: Did Stengart have the right to privacy in e-mails sent to her attorney?
Decision: Yes, Stengart had a reasonable expectation of privacy regarding her occasional personal use, especially regarding communications protected by the attorney-client privilege. The appeals court reversed the trial court’s decision and ordered the employer and its attorney to turn over all email communications between plaintiff and her attorney and to delete all such email from computer hard drives
Reasoning: The court explained that “an employer’s rules and policies must be reasonable to be enforced” and must “concern the terms of employment.” Although the employer’s policy provided that email was part of the employer’s business records and was “not to be considered private or personal to any individual employee,” employees were permitted under the policy to make “occasional personal use” of employer computers. The court concluded that “the policies undergirding the attorney-client privilege substantially outweigh the employer’s interest in enforcement of its unilaterally imposed regulation,” and it rejected “the employer’s claimed right to rummage through and retain the employee’s emails to her attorney.”