Attorney-client privilege trumps an employer’s electronic communications and computer use policy

Stengart v. Loving Care Agency, Inc., 973 A.2d 390 (N.J. Super. A.D., 2009 WL 1811064 (N.J. Super. A.D.)

Introduction.

Stengart addressed whether the attorney-client privilege protected a former employee’s emails that were sent to her attorney using a company-issued laptop computer through a personal, password-protected, web-based (Yahoo) email account. The emails addressed a lawsuit the former employee contemplated bringing against her employer and were sent to the employee’s personal attorney prior to her resignation from the company. The company obtained the emails after suit was filed by making a forensic image of the computer’s hard drive and extracting them from the plaintiff’s internet browser history.

The court in Stengart concluded the emails were privileged, holding the policy considerations underlying the attorney-client privilege “substantially outweighed” the company’s interest in enforcing its computer use and electronic communications policy. The decision is also significant in that the court remanded for an evidentiary hearing to determine whether the company’s attorneys should be disqualified or if some other sanction should be imposed as a result of their failure to comply with Rule 4.4(b) of the New Jersey Rules of Professional Conduct. The New Jersey rule, like Rule 4.4(b) of the Model Rules, requires that whenever a lawyer has reasonable cause to believe that a document was inadvertently produced, the lawyer should not read it, and must promptly notify the sender.

The court’s decision in Stengart should be contrasted with Scott v. Beth Israel Medical Center, 17 Misc. 934, 847 N.Y.S.2d 436 (2007), which held the attorney-client privilege was lost when the plaintiff used the company’s email system to communicate with his attorney in view of the company’s no personal use and email monitoring policies coupled with the plaintiff’s awareness of those policies. The Stengart and Beth Israel decisions demonstrate that whether an employee’s communication with personal counsel retains its privileged nature when made via the company’s computer or email system involves a fact-specific inquiry. This post will address those decisions and will outline the factors that courts have examined when addressing the issue of attorney-client privilege in this context.

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Discovery of text messages under the Stored Communications Act

Illinois hasn’t cornered the market on politicians charged with wrongdoing, lately it only seems that way. Want to know your opponents can obtain the text messages that can get your clients into trouble? Here’s how:  Flagg v.City of Detroit, 252 F.R.D. 346 (E.D. Mich. Aug. 22, 2008).

Flagg has been listed by one e-discovery blog as one of the top 5 e-discovery decisions of 2008.  

No, this is not the decision involving the text messages between the former Mayor of Detroit and his female chief of staff that were purportedly more tawdry and explicit than an old Harlequin romance novel.  Flagg involved a wrongful death action and the text messages being sought related to a possible cover-up and interference of an investigation involving the murder of an exotic dancer who allegedly performed at a party at the Mayor’s official residence. 

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