In a ruling this past February in Stengart v. Loving Care Agency (BER-L-858-08), a New Jersey Superior Court Judge found that an employee’s e-mail correspondence with her counsel, made on the company’s laptop was not protected under the attorney-client privilege, despite the fact that she has used a password-protected, web-based email account and not her company email.
Courts throughout the country have consistently found that when an employee utilizes an email account issued by the employer, over the employer’s servers, such correspondence is not generally protected by the attorney-client privilege if the employer gave sufficient notice that emails are subject to review. The Stengart case, however, is one of first impression and seemingly takes the policy rationale of these noted decisions one step further, finding that even when an employee is prudent enough to use a “private” email account, such communications may be deemed company property and should not be considered “private” nor “protected”.
Its important to note, however, that the Court’s findings took into large account the fact that the employee handbook specifically provided that “Email, voice messages, internet use and computer files are considered part of the company’s business and client records” and that “such communications are not to be considered private or personal to any individual employee.” The handbook further prohibited the use of email for “other employment activities outside the scope of the company’s business.”
The Plaintiff attempted to argue that she was unaware of the company’s policy governing email when she communicated with her attorney regarding her intent to resign, trusting that such communication was private and privileged. The Court dismissed Plaintiff’s insufficient notice argument and was persuaded rather by the fact that the employee handbook was distributed to each employee, an electronic version is accessible on the Company’s server and the Plaintiff herself assisted in creating the handbook.
Therefore, while certainly this is a significant case establishing a basis for recovering material that may otherwise be protected by the attorney-client privilege, employers must be cautious and mindful that much of the ruling was based on a particular factual scenario. In Stengart, the employer carefully drafted and distributed an email communication policy that warned employees against any privacy expectations. However, had the employee handbook not been as clear with its policy regarding email or had sufficient notice of the policy not been established, the Court may have ruled differently.