In 2007, in what has been viewed as the seminal New York decision on the issue, Judge Charles Edward Ramos of the Commercial Division of the Supreme Court of the State of New York, New York County, ruled in Scott v Beth Israel Medical Centre Inc(1) that an employee's use of his employer's email system to communicate with his attorney deprived those communications of any protection under attorney-client privilege. Recently, in Stengart v Loving Care Agency, Inc(2) the New Jersey Supreme Court held that an employee's communications with her counsel from her employer's computer were protected by the privilege. While the fact that these cases occurred in different jurisdictions may explain the different rulings, they may also be harmonised due to the particular facts in each case.

In Scott Ramos relied on three factors that he found particularly compelling in finding that the employee waived the attorney-client privilege by communicating over his employer's email system:

  • the employer had a policy that prohibited personal use of the email system;
  • that policy specifically allowed for monitoring by the employer; and
  • the employee had notice of the employer's policy.

The facts in Stengart were significantly different. There, the employee used a company computer to transmit emails on her personal, password-protected, web-based email account. The employer discovered the emails at issue during its efforts to preserve electronic evidence for discovery after the employee filed the lawsuit. The court rejected the employer's argument that based on its electronic communications policy, its employees had no reasonable expectation of privacy in their personal email accounts accessed via company computers. The court found that the scope of the policy was ambiguous inasmuch as it was unclear whether the policy covered personal email accounts. The policy also permitted occasional use of email for personal purposes.

Moreover, by using a personal, password-protected email account to communicate with her attorney, the court found that the employee had taken steps to protect her communications with her attorney. The court further noted that the emails were not illegal or inappropriate in any way and contained a disclaimer from her attorney that they may be attorney-client communications. Thus, the court determined that the employee had a reasonable expectation of privacy and that she had not waived the attorney-client privilege. The court admonished the employer for not having promptly notified the employee's attorney when it discovered the emails and realised that they were potentially privileged communications.

These cases should not be understood to represent fundamentally opposing positions regarding waiver of attorney-client privilege in connection with an employee's use of his or her employer's computer and email systems. Together, however, they emphasise that the content and clarity of the employer's policy is critical to the determination. Employers should ensure that their electronic communication policies are unambiguous in warning employees as to the kinds of communication covered by the policy, as well as the types of monitoring that the employer will conduct. Employers should also consider whether to establish clear limitations on employees' personal use of company computers and devices and email communication systems. Further, if potentially privileged emails of an employee are discovered during the course of litigation, the employer should consider whether such emails must be segregated and opposing counsel promptly notified. Employees in both New York and New Jersey should be mindful that these cases leave the door open for employers to argue that an employee's personal emails on a company email system are not protected by attorney-client privilege and similar privileges and doctrines.

For further information on this topic please contact Kevin B Leblang or Robert N Holtzman at Kramer Levin Naftalis & Frankel LLP by telephone (+1 212 715 9100), fax (+1 212 715 8000) or email (kleblang@kramerlevin.com or rholtzman@kramerlevin.com).

Endnotes

(1) 17 Misc 3d 934 (Sup Ct NY Cty 2007).

(2) 990 A 2d 650 (NJ 2010).

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