e-Lesson Learned: If your client is under an agreement to produce specific custodians’ documents by a specific deadline, make sure you know all physical locations each custodian might save documents, INCLUDING a shared file directory on a server. The court will not be impressed by your attempts to use, in support of your motions, documents produced late; and the excuse that you were unaware of a shared directory of a named custodian is no excuse for failing to produce responsive documents found on that directory.
It happens all the time. To expedite the litigation process, parties reach agreements as to the scope and timing of electronic discovery. After all, who wants to delay litigation with the lengthy and expensive review of a universe of documents when you can significantly shrink that universe without compromising the quality of your production by agreeing on a set of specific custodians?
The parties in Wixon v. Wyndham Resort Development Corp. reached an agreement that by a specific date, Wyndham would produce electronically stored information (“ESI”) held by specific custodians that matched specific search terms. But what happened when, after the deadline, Wyndham revealed a stash of ESI found in a shared directory of a hard drive not allocated to a specific custodian? Does a document not directly linked to a specific custodian automatically become “nonresponsive”? Continue reading »
Employee/Employer Implicated: Employees and Employers Alike
e-Lesson Learned: The employee in this case had a reasonable expectation of privacy in personal web-based emails between the employee and her lawyer, sent and received (during work hours) using the employer’s computer and IT systems.
This is the second video by Joscelyn from the eLessons Learned series on Stengart, dealing with the March 30 New Jersey Supreme Court decision favoring privacy over waiver of attorney-client privilege.
e-Lesson Learned: Attorney-client communications made via personal, password-protected web-based email accounts are still privileged, even if accessed via a company-supplied computer – at least in New Jersey!
The New Jersey Supreme Court has a long history of affording New Jersey citizens broader privacy protection rights than those offered by the federal government. For example, the New Jersey Supreme Court has held that citizens have a reasonable expectation of privacy in their bank account records, in their garbage, and in the personal information linked to their IP addresses. Thus, when the question of whether an employee who uses a company computer to access e-mail communications between her and her attorney maintains the confidentiality of those communications, it was no surprise that the Court held that the act of an employee who accesses her attorney-client communications via a company laptop does not destroy the privilege.
Citation: Stengart v. Loving Care Agency, Inc., Docket No. BER-L-858-08 (slip opinion) (N.J. Super. Ct. L. Div. Feb. 5, 2009)
Employee/Employer Implicated: Employees and Employers Alike
e-Lesson Learned: (Coming as soon as the Supremes rule on the issue of whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer, sent and received (during work hours) using the employer’s computer and IT systems
Employee/Employer Implicated: Employees and Employers Alike
e-Lesson Learned: Coming as soon as the Supremes rules on the issue of whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer sent and received (during work hours) using the employer’s computer and IT systems
So what is all the fuss about Stengart v. Loving Care Agency, Inc. et al.? Why are eDiscovelebrities and employment lawyers alike watching the case so closely? Why should YOU be watching?Privacy! (And eDiscovery, of course)
“It” (Stengart, the fuss, the Supreme Court of New Jersey, this post, all this blog attention) all boils down to whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer sent and received (during work hours) using the employer’s computer and IT systems.
According to the trial court, Stengart did not have a reasonable expectation of privacy and the emails were properly retrieved and used by the employer and its lawyers in defense of the lawsuit. According to the appeals court, not only did she (have a reasonable expectation of privacy), but also the appeals court took issue with the way the company lawyers handled the situation and queried whether the lawyers acted inappropriately when they retrieved and used these emails – and whether they should be sanctioned and/or thrown off the case. Ouch!
Protecting your privacy starts with you! When sending an email, keep in mind where you are sending it from – it may not be as private as you may think (or expect). In Leor v. Aguiar, the court found that the CEO had no reasonable expectation of privacy in emails he transmitted through his employer’s server, thus, he could not meet the burden necessary to establish attorney-client privilege in an email he sent to his attorney from work, resulting in the e-mail losing protection from disclosure. CompareStengart v. Loving Care Agency, Inc., New Jersey Superior Court, docket no. BER-L-858-08 (similar holding) withStengart v. Loving Care Agency, Inc., 408 N.J. Super. 54 (App. Div. 2009) (reversing trial court and finding no waiver of privilege) (certification granted by the New Jersey Supreme Court and decision pending).
The court iterated that whether an employee had a reasonable expectation of privacy in his/her emails transmitted through an employer’s server should be determined on a “case-by-case basis.”
Employee/Employer Implicated: Employees and Employers Alike
e-Lesson Learned: (Coming as soon as the Supremes rule on the issue of whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer, sent and received (during work hours) using the employer’s computer and IT systems
Earlier we reported that a New Jersey state trial court found that a former employee waived the attorney-client privilege when she decided to use company time, equipment, and resources to communicate with her lawyer (see Stengart v. Loving Care). Recently, an appellate court reversed that ruling and framed the issue “whether workplace regulations converted an employee’s emails with her attorney” sent through the employee’s personal, password-protected, web-based email account, but via her employer’s computer “into the employer’s property.”
Plaintiff had argued that the company failed to demonstrate that it had ever adopted or distributed the policy in question, that she was unaware that the policy applied to her, and even if the policy did exist, the company had not previously enforced it. The company argued that it had disseminated the policy, and that the policy did apply to the plaintiff. The appellate court determined that issues of material fact existed as to whether the policy at issue was in place and disseminated at the time of plaintiff’s employment and as to whether the policy applied to plaintiff; and that these issues could not be resolved by the trial judge without a hearing on the matter.
Employee/Employer Implicated: Employees (although it is unclear exactly who) involved in producing documents for copying by a party-opponent
e-Lesson Learned: Recently adopted Federal Rule of Evidence 502 provides protection for litigation parties who produce electronically stored information that otherwise qualifies for the attorney-client privilege. Even where such party produces privileged data, if the production was inadvertent, and the party took rapid steps to protect the data, FRE 502 dictates that the party has not waived its privilege.
Plaintiff companies Laethem Equipment company and Laethem Farm Service Company (collectively “Laethem”) were involved in a lawsuit with Deere and Company (“Deere”) involving claims of breach of contract, tortious interference with business relationships and violations of state trade secret law. The judge ordered the parties to secure all electronically stored information and metadata and to file a data log, summarizing the secured data, with the court.
Pursuant to discovery requests, Laethem allowed Deere to go to Laethem’s attorney’s office in order to copy documents. During this session, Laethem inadvertently disclosed several documents that were protected by the attorney-client privilege. Deere sought a court order that Laethem’s actions constituted waiver of the privilege.
Deere argued that because Laethem turned over disks containing privileged documents and delayed in objecting to the disclosure, Laethem had waived attorney-client privilege with respect to the documents contained on the disks. Continue reading »
Employee/Employer Implicated: Employees and Employers Alike
e-Lesson Learned: Coming as soon as the Supremes rules on the issue of whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer sent and received (during work hours) using the employer’s computer and IT systems
From the second we stepped foot in law school we learned that the attorney-client privilege was sacrosanct. While by no means absolute, we knew it was pretty hard to gain access to the communications between an attorney and client. Waiver just became a little more likely in New Jersey. A state trial court decision underscores the reality that email communication is too often treated informally and we as attorneys can no longer assume a client’s “personal” email account is truly personal. For while the account itself may be, the means by which the message was sent, may not.
Recently, a New Jersey trial court had occasion to determine whether an employee’s use of her employer’s computer and server to communicate with her lawyer waived the attorney-client privilege. In Stengart v. Loving Care Agency, Inc., docket no. BER-L-858-08, the court held that it did; and the ruling highlights for employers the importance of having a detailed employee handbook and technology system protocol in place; and for lawyers the importance of making sure that communications from clients come by way of truly personal means.
Citation: Stengart v. Loving Care Agency, Inc., Docket No. BER-L-858-08 (slip opinion) (N.J. Super. Ct. L. Div. Feb. 5, 2009)
Employee/Employer Implicated: The former Director of Nursing of a home-care services company
e-Lesson Learned: When you are suing or preparing to sue your employer, it is best to not communicate with your attorney using a company computer on company time. Using an employer-issued computer to communicate with your lawyer during business hours can effectively waive your attorney-client privilege regarding those communications, especially if the company’s electronic communication policy says that such communications are not private.
This post has been updated to reflect subsequent appellate action. Click Here to jump to the updated section.
Employers often give their employees communication equipment that they may use to carry out their job duties: computers, laptops, cell phones, PDAs, and the like. What is often lost on those employees is that those items belong to the employer, not the employee, and often all communications made from those items are not deemed private by the employer. Thus, if you want to communicate with someone away from the prying eyes of your employer (like with your lawyer who is helping you sue your employer), it is best to do so using the communication tools that you own. This case shows why.
Factual Background
Stengart, an employee of Loving Care Agency, Inc. (“Loving Care”) for nearly 13 years, left her position as Director of Nursing in December 2007 and filed a lawsuit against Loving Care in February 2008 for fostering a hostile work environment that led to her constructive discharge. Prior to her resignation, Stengart communicated with her lawyer about her employment issue with Loving Care by emailing her lawyer from her Yahoo email account. She typically used her company-issued laptop to do this, and often did so during business hours. Continue reading »
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Tagged as: Discoverability, Meet & Confer, Production of Data, Sanctions, Waiver
