e-Lessons Learned

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.

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.

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Blogger Joscelyn briefs us on the Stengart v. Loving Care case in this video eLesson.

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!

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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.

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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.

Click here for full article.

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 »