The New Jersey Supreme Court in Stengart v. Loving Care Agency has held that an employee’s communications with her attorney were protected by the attorney-client privilege and, thus, off limits to review by her employer notwithstanding the employer’s corporate computer policies reserving all rights to review employee e-mails. 2010 WL 1189458 (N.J. March 30, 2010). The Court also held that the employer’s counsel violated New Jersey ethics rules by reviewing the e-mails exchanged by the employee and her counsel without first notifying the employee’s counsel and seeking court permission to do so.

The plaintiff, Marina Stengart, used her employer’s laptop computer to communicate with her attorney about an anticipated lawsuit against her employer “through her personal, password-protected, web-based e-mail account.” Id. at 2. After Stengart filed a discrimination suit her then ex-employer found numerous e-mails on the company computer between Stengart and her attorney. These e-mails were found in temporary Internet files that had been saved to the hard drive.

Stengart’s employer had a written corporate computer policy that stated, in substance, that all e-mails and computer files are considered company records and are not to be considered private or personal to any employee. The policy further permitted the company to access and review “all matters on the company’s media systems” and allowed “occasional personal use” with some specified limitations.

The court based its decision on (1) the ambiguity in the policy which created for Stengart an expectation of privacy that her e-mails with her attorney would not be viewed by her employer and (2) the important policy concerns underlying the attorney-client privilege. First, the court found that “It is not clear from that language [of the policy] whether the use of personal, password-protected, web-based e-mail accounts via company equipment is covered” and “the Policy also does not warn employees that the contents of such e-mails are stored on a hard drive and can be forensically retrieved and read by” the employer. Id. at 6.

The court concluded that “[a]s written, the Policy creates ambiguity about whether personal e-mail use is company or private property.” Id. Therefore, Stengart had an expectation of privacy in her e-mail communications to her attorney using her company laptop.

The court went beyond the computer policy at issue and stated that “because of the important public policy concerns underlying the attorney-client privilege, even a more clearly written company manual - that is, a policy that banned all personal computer use and provided unambiguous notice that an employer could retrieve and read an employee’s attorney-client communications, if accessed on a personal, password-protected e-mail account using the company’s computer system, would not be enforceable.” Id. at 12.

The court ruled that the employer’s counsel was obligated to notify the employee’s counsel immediately when the e-mails were discovered and not to review the e-mails further until a court had adjudicated whether the e-mails were protected by attorney-client privilege. The court concluded that by failing to do so the employer’s counsel violated the New Jersey Rule of Professional Conduct 4.4(b) regarding what steps must taken when a document is received inadvertently. The court remanded the matter to the trial court to determine the appropriate relief for the ethical violation.

Other states have adopted a different rule than New Jersey regarding the treatment by counsel of inadvertently produced documents. Thus, counsel should consult the rule of the applicable state when determining how to handle employee e-mails that may be privileged.