Monthly Archives: March 2010

In today’s groundbreaking opinion in Stengart v. Loving Care Agency, Inc., the New Jersey Supreme Court ruled that an employee had a reasonable expectation of privacy in e-mail communications with her lawyer through her personal, password-protected, web-based e-mail account, despite accessing the e-mail account on a laptop provided by the employer. Additionally, the attorney-client privilege protecting the e-mails was not eliminated because the e-mails were sent and received on the employer’s laptop. Stengart communicated with her attorney about her employment discrimination suit against Loving Care. Stengart returned the laptop when she stopped working for Loving Care.
Stengart did not know that the browser software in the laptop, which she used to access her Yahoo account, automatically saved a copy of every web page she viewed. The copies were saved on the laptop’s hard drive in a “cache” folder. In preparation for discovery, forensic images were made of the laptop’s hard drive, including the temporary Internet files, which contained several e-mails between Stengart and her lawyer. Loving Care’s attorneys read the e-mails and used the information in discovery. After Stengart’s lawyer demanded the e-mails be returned, Loving Care’s lawyers disclosed them.
Loving Care argued, however, that Stengart had no reasonable expectation of privacy because the files were in a computer owned by the employer and because of Loving Care’s policy concerning electronic communications. The policy stated that the company may access all information on its media systems and services at any time; additionally, all e-mails, Internet communications and files are Loving Care’s business records. However, the policy also stated that occasional personal use was permitted. When using the Yahoo account, Stengart did not save her Yahoo ID or password on the laptop.
To analyze the reasonableness of Stengart’s expectation of privacy, the Court examined the company’s policy. The policy did not give notice to employees that messages on personal web-based e-mail accounts could be monitored if the company’s equipment was used and did not warn employees that personal e-mails would be stored on the hard drive and forensically retrieved. Because she used her personal account and did not save the password, Stengart had a subjective expectation of privacy. Significantly, the Court held that although employers can enforce lawful policies regarding computer use, they have no basis to read the contents of personal, privileged communications. The court held that a policy stating that the employer could read attorney-client e-mails accessed through personal accounts could not be enforced.
The entire opinion is here:

Sooner or later every state, including Florida, is going to have deal with these issues head on. Unless reasonable expectations of privacy, even at the workplace, are protected, we can expect a end, entirely, to the attorney-client privilege. Sarelson Law Firm has extensive experience litigating workplace privacy issues, including a very similar case here in federal district court in Miami. Questions about workplace privacy? Contact Sarelson Law Firm today.