Stengart v. Loving Care Agency, Inc., 973 A.2d 390 (N.J. Super. Ct. App. Div., June 26, 2009).
Plaintiff corresponded with her attorney through a personal, password-protected web-based email account while using a computer supplied by her employer. The company’s email policy claimed that essentially anything created by the company’s media systems and services was company property. It also defined a number of prohibited practices for its “email system,” and reserved the right to “review, audit, intercept, access, and disclose all matters” on the systems and services without notice. However, while principally for company business, the policy permitted “occasional personal use.” After plaintiff resigned and initiated litigation for alleged discrimination, the employer used forensics to review her computer, including the privileged communications. Employer’s counsel reviewed the communications and used them in discovery. The trial court supported employer’s claims that its internal rules regarding electronic communications obviated plaintiff’s attorney-client privilege. Reversing, the Court of Appeals found that policies supporting the privilege substantially outweigh an employer’s interest in enforcement of unilaterally imposed regulations particularly when, as here, the regulations permit “occasional personal use.” Because employer’s counsel review and retention of the privileged communication violated professional responsibility rules, the appeals court also ordered the lower court to determine whether employer’s counsel should face disqualification or other sanction.
- To enforce a corporate email policy you will need to demonstrate a clear nexus between the regulated conduct and the legitimate business interests of the company.
- Remember to keep corporate email policies internally consistent. A policy that allows some personal email use, but then states generally that all emails from company-owned computers are company property (and purports to transform all private communications into company property) will likely be deemed unreasonable and/or unenforceable.
- Companies and their counsel should treat as privileged any emails clearly demonstrating a private communication between an employee and their attorney. Those who have the obligation should also remain mindful of the duties imposed by the ethical rules regarding notification and return for any inadvertent disclosures.
Because employment regulations unilaterally imposed on an employee are not limitless, a wholesale rummage through employee’s clearly personal information, (especially privileged information) ultimately may disclose more about the employer—and the limits of its internal policies—than the employee subjected to the search.
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