Law Firm New Jersey

During Marina Stengart’s tenure with the Loving Care Agency, Inc. she corresponded with her attorney through a web-based, Yahoo e-mail account accessed on a company laptop. Shortly after resigning, Stengart brought suit against Loving Care for discrimination. Preparing for litigation, Loving Care arranged for experts to analyze Stengart’s company laptop to retrieve temporary internet files. This search yielded several e-mails between Stengart and her attorney which Loving Care later referenced in response to interrogatories.

Asserting the attorney-client privilege, Stengart sought a court order preventing Loving Care’s attorneys from using the emails at trial. In response, Loving Care argued that Stengart had waived the attorney-client privilege because she had no reasonable expectation of privacy in her emails. They pointed to the company’s electronic communications policy (“policy”) which explicitly provided that emails authored on company computers were the property of the company and should not be considered private. The trial court agreed with Loving Care, finding that Stengart knew of the company policy and therefore waived the attorney-client privilege.² In a stern opinion, the Appellate Division reversed, holding that the attorney-client privilege attached to the emails, noting that “a breach of [the internet usage] policy . . . does not justify [Loving Care’s] claim of ownership to personal communications.”³ Loving Care appealed to the New Jersey Supreme Court.

Rejecting the 4^th Amendment “reasonable-expectation-of-privacy”⁴ jurisprudence advocated by the parties, the New Jersey Supreme Court instead applied a common law tort standard to decide whether Stengart’s expectation of privacy in the contents of her personal emails was subjectively and objectively reasonable. The Court determined that Stengart’s subjective expectation of privacy was justified because she used a “personal, password-protected e-mail account instead of her company e-mail address, and did not save the account’s password on her computer.”⁵ The Court further found that Stengart’s expectation of privacy was objectively reasonable, explaining that Loving Care’s policy explicitly approved limited personal emails; the emails were between a lawyer and his client; and finally that the emails bore the attorney’s boilerplate warning which informed the reader that the information was subject to the attorney-client privilege. Thus, because Stengart’s expectation of privacy was reasonable, she could not have waived her attorney-client privilege.

In dicta, the Court went on to explain that employers have every right to monitor and punish personal internet usage where a well-drafted employee policy reasonably prohibits personal internet usage. Nevertheless, given the “policy concerns underlying the attorney-client privilege,” an employer cannot completely prohibit an employee’s use of a personal email account to access attorney-client messages. Further, the Court expressed disfavor for any company policy that enforced a “zero-tolerance” policy for personal email usage. Therefore, New Jersey employers should take heed, a complete ban on legitimate,⁶ personal email messages sent by your employees may be unenforceable.

Dr. Sunil Garg of Natarajan LLP will speak on the implications of the Stengart case in a panel entitled “Electronic Media: Is Your Privilege Protected After “Loving Care?” at the New Jersey Environmental Law Section annual meeting held on June 27, 2010.