Emails sent through Yahoo account using work computer protected under attorney-client privilege

The New Jersey supreme court has held that emails an employee sent to her lawyer using her company-issued computer and a personal Yahoo account are protected by the attorney-client privilege.

Stengart v. Loving Care Agency, Inc., — A.2d —, 2010 WL 1189458 (N.J. March 30, 2010)

The New Jersey courts have a reputation of being protective of “informational privacy.” See, e.g., State v. Reid. A recent decision concerning employee privacy in personal emails adds to that reputation.

Plaintiff-employee used a work-issued laptop to access her Yahoo email account, through which she communicated with her lawyer about her lawsuit against the employer. During the discovery phase of that employment discrimination lawsuit, the employer used computer forensics to recover those Yahoo emails that had been copied to the computer’s temporary internet files folder.

Counsel for plaintiff demanded that the employer turn over the recovered emails, arguing that the communications were protected by the attorney-client privilege. When the employer agreed to turn them over but not discontinue use of the information garnered from them, plaintiff sought relief from the court.

The trial court denied relief and plaintiff sought review with the appellate court. That court reversed, and the employer sought review with the state’s supreme court. You can read our prior blog post that discussed the appellate court’s decision here. The supreme court upheld the appellate court’s decision, holding that the employee had a reasonable expectation of privacy in the communications.

The employer relied on a broadly-written company policy through which the employer reserved the right to review and access “all matters on the company’s media systems and services at any time.” But the court rejected those arguments.

Framework for the analysis

The supreme court considered two aspects in its analysis: (1) the adequacy of the notice provided by the company policy, and (2) the important public policy concerns raised by the attorney-client privilege.

As for the adequacy of the notice provided by the policy, the court found that because the policy did not address the use of password-protected personal email accounts, the policy was “not entirely clear.” As for the importance of the attorney-client privilege, the court lavished it with almost-sacred verbal accoutrements, calling it a “venerable privilege . . . enshrined in history and practice.”

“Intrusion upon seclusion” as source for standard

The court noted that the analysis for a reasonable expectation of privacy in dealings between two private parties was a bit different than the analysis in a Fourth Amendment case. The common law source for the standard in this context is with the tort of “intrusion upon seclusion.” Under New Jersey law, that tort is committed when one intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, in a manner that would be highly offensive to a reasonable person. (This language comes from the Restatement (Second) of Torts § 652B.)

In this situation, the court found that plaintiff had both a subjective and objective expectation that the messages would be private. Supporting her subjective belief was the fact that she used a private email account that was password protected, instead of her work email account. And she did not store her password on the computer. Her belief was objectively reasonable given the absence of any discussion about private email accounts in the company policy.

Plaintiff’s expectation of privacy was also bolstered by the fact that the email messages were not illegal, nor would they impact the performance of the employer’s computer system. And they bore all the “hallmarks” of attorney-client communications.

For all these reasons, not the least of which the priority of the courts “to keep private the very type of conversations that took place here,” the court found that the conversations were protected by the attorney-client privilege.

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.

Read the rest of this entry »

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. 

Read the rest of this entry »