Stengart v. Loving Care Agency, Inc.
201 N.J. 300, 990 A.2d 650 (2010)
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Rule of Law:
An employee has a reasonable expectation of privacy in communications with their attorney exchanged through a personal, password-protected, web-based email account, even when accessed on a company-owned computer. An employer's ambiguous electronic communications policy, which permits some personal use, is insufficient to defeat the attorney-client privilege attached to such communications.
Facts:
- Loving Care Agency, Inc. provided its employee, Marina Stengart, with a laptop computer for business use.
- Loving Care's employee handbook stated the company could review and access all matters on its 'media systems and services' but also permitted 'occasional personal use' of the email system.
- While employed, Stengart used the company laptop to access her personal, password-protected Yahoo email account.
- Through her personal Yahoo account, Stengart exchanged emails with her attorney regarding a potential lawsuit against Loving Care.
- Stengart did not save her Yahoo account password on the company laptop.
- After Stengart resigned and returned the laptop, Loving Care hired a forensic expert to create an image of the hard drive in anticipation of litigation.
- The expert recovered temporary internet files from the hard drive which contained the content of the emails between Stengart and her attorney.
Procedural Posture:
- Marina Stengart filed a lawsuit against her former employer, Loving Care Agency, Inc., in a New Jersey trial court.
- During discovery, Loving Care's counsel reviewed emails between Stengart and her attorney recovered from her former company laptop.
- Stengart filed a motion seeking the return of the privileged communications.
- The trial court denied the motion, ruling that Stengart had waived the attorney-client privilege by using a company computer.
- Stengart appealed to the Appellate Division of the Superior Court of New Jersey.
- The Appellate Division reversed the trial court's order, finding the emails were privileged and that Loving Care's counsel had violated professional conduct rules.
- The Supreme Court of New Jersey granted Loving Care's motion for leave to appeal.
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Issue:
Does an employee waive the attorney-client privilege for emails exchanged with her attorney through a personal, web-based email account when she uses a company-issued computer, despite a company policy permitting monitoring of its 'media systems and services'?
Opinions:
Majority - Chief Justice Rabner
No, the employee does not waive the attorney-client privilege under these circumstances. Stengart had an objectively reasonable expectation of privacy in her communications with her attorney. This expectation arose from her use of a personal, password-protected, web-based email account, which demonstrated a subjective intent to keep the communications confidential. The company's policy was ambiguous; it did not explicitly state that it would monitor personal, web-based email accounts, nor did it warn employees that temporary internet files from such activity were stored on the hard drive and subject to retrieval. The policy's allowance of 'occasional personal use' further clouded whether such use was considered private. Given the profound public policy importance of the attorney-client privilege, even a clearer policy would be unenforceable to the extent it sought to invade otherwise privileged communications. The court further held that Loving Care's counsel violated RPC 4.4(b) by reading the privileged documents without promptly notifying opposing counsel.
Analysis:
This decision significantly strengthens employee privacy rights in the digital workplace, particularly concerning privileged legal communications. It establishes that the use of a company device does not automatically negate an expectation of privacy, especially when an employee takes reasonable steps to shield communications, like using a personal, web-based account. The ruling places a high burden on employers to draft exceptionally clear and comprehensive electronic use policies that specifically address the monitoring of personal accounts and data storage. Crucially, the court's holding suggests that the attorney-client privilege is so fundamental that even a perfectly drafted, all-encompassing monitoring policy might not be enforceable against it, setting a high bar for employers seeking to access such communications.
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