Introduction

In our March 2008 and June 2009 Electronic Discovery Updates, we discussed the emerging issue of the extent to which courts have found personal emails sent by employees from their work computers to be private or protected by the attorney-client privilege.* Specifically, our most recent issue highlighted Stengart v. Loving Care Agency, Inc., No. BER-L-858-08 (N.J. Super. Ct. L. Div. Feb. 5, 2009), in which the New Jersey Superior Court, Law Division, held that an employee had waived the protection of the attorney-client privilege with respect to email communications with her attorney concerning an employment dispute sent from her web-based, password-protected Yahoo! email account accessed from her work computer. The court’s decision turned on language in the employer’s electronic communications policy, which it found clearly indicated to employees that they had no expectation of privacy in Internet use on or communications sent from their work computers.

Last month, the New Jersey Superior Court, Appellate Division, reversed the Law Division’s decision in Stengart, finding that the strong public policy underlying the attorney-client privilege outweighed the employer’s interest in the enforcement of its electronic communications policy. Stengart v. Loving Care Agency, Inc., 973 A.2d 390, 2009WL 1811064 (N.J. Super. Ct. App. Div. June 26, 2009). The Appellate Division also found the employer’s policy to be ambiguous and vague, and its discussion of the policy’s flaws provides further guidance for the writing of effective electronic communications policies.

Attorney-Client Privilege

In determining whether the attorney-client privilege applied to the Stengart plaintiff ’s personal emails, the appellate court weighed the employer’s interest in enforcing its policy against the employee’s interest in maintaining the confidentiality of her email communications with her attorney. Id. at *8. The policy in question provided, in relevant part, that “email and voice mail messages, internet use and communication and computer files are deemed part of the company’s business and client records” and “are not to be considered private or personal to any individual employee.” Id. at *2. Noting that an employer would have an interest in retaining and owning employee communications conducted on work computers in furtherance of the employer’s business, the court determined that the employer in Stengart had an insufficient interest in retaining its employees’ personal emails that were not in furtherance of the employer’s business. The court rejected the employer’s contention that it retained ownership of plaintiff ’s personal emails because it owned the computer from which they were sent. Likewise, the court rejected the subject matter of the emails — the plaintiff ’s anticipated litigation with her employer — as a valid basis for the employers’ interest in the communications, noting “the company had no greater interest in [the emails] than it would if it had engaged in the highly impermissible conduct of electronically eavesdropping on a conversation between plaintiff and her attorney while she was on a lunch break.” Id. at *7. In short, the court stated that while there may be some situations in which an employer may have a legitimate interest in accessing an employee’s personal emails sent from a work computer — for example, where the communications impact the company’s business or reputation, or where an employee is suspected of accessing child pornography — the employer in Stengart lacked a legitimate business interest in accessing the employee’s email correspondence with her attorney. Weighing the employer’s lack of a legitimate interest in the enforcement of its policy against the strong public policy behind the attorney-client privilege of encouraging unfettered communication between attorneys and their clients, the court reversed the Law Division’s decision, holding that the plaintiff ’s personal emails remained protected by the attorney-client privilege.

Electronic Communications Policy

While the court’s decision rested mainly on its finding that the policies underlying the attorney-client privilege outweighed the employer’s interest in enforcing its policy, the court noted several ambiguities relating to the policy itself that contradicted the Law Division’s finding that the policy had clearly put the employee on notice that her personal emails should be considered the property of her employer.

First, the court noted that multiple versions and drafts of the policy had been circulated, and that it was unclear whether any particular version had been adopted and whether any version applied to employees holding — as the plaintiff had — executive positions. Id. at *2. Second, the court found that the meaning and scope of the policy were unclear from its language. For example, while the policy broadly indicated that email and Internet use were to “be considered part of the company’s business and client records” and not “private or personal to any individual employee,” the policy also contained a potentially contradictory provision permitting “occasional personal use” of email on work computers. Id. at *3. In light of the above ambiguities, the court found that the policy could “convey to an objective reader that personal emails . . . do not become company property when sent on a company computer.” Id. at *4.Third, the court noted that the “company had its own ‘email system’ for communications within and without the company” and that, accordingly, “references to the use or misuse of this ‘email system’” in the policy “could reasonably be interpreted to refer only to the company’s work-based system and not to an employee’s personal private email account accessed via the company’s computer.” Id. at *3.

Disqualifying the Company’s Counsel

The appellate court also took the employer’s counsel to task for violating his ethical obligations under Rule of Professional Conduct 4.4(b), which provides that in the course of a representation, “[a] lawyer who receives a document and has reasonable cause to believe that the document was inadvertently sent shall not read the document or, if he or she has begun to do so, shall stop reading the document, promptly notify the sender, and return the document to the sender.” The court found that by reading and using the subject emails, despite their apparent attorney-client privilege implications, counsel had violated the rule. Id. at **9-10. The court remanded for consideration by the Chancery Court, which was presiding over a related litigation between the same parties, whether the employer’s counsel should be disqualified, stating that the content of the emails and the inevitability of the discovery of facts contained therein through other means of discovery should control the outcome. Id. at *10. The appellate court bypassed the trial court on this issue out of concern that its “commitment to the determination . . . previously made on the issues” overturned in the opinion might be of influence. Id.

Conclusion

Stengart reaffirms the importance of clarity in the writing and implementation of policies governing employee Internet use on work computers. While the law on this issue remains unsettled (and even unaddressed in many states), it is clear that employers should take care to draft such policies to unambiguously communicate to employees the specific conduct to which they apply in order to maximize the likelihood that they will be enforced by courts. Additionally, the Stengart decision encourages employers wishing to restrict employee Internet use to enumerate prohibited uses in policies where possible, so as to avoid any ambiguity with respect to permissible employee conduct, and to assist courts in interpreting employers’ legitimate business interests in maintaining the policy.

Finally, the Appellate Division’s decision in Stengart makes clear that absent an employer’s legitimate business interest in accessing personal employee emails, an employee’s awareness of a blanket provision in an electronic communications policy or employee handbook that all emails and Internet use on a work computer belong to the employer may not be enough to constitute a waiver of the employee’s privacy. Furthermore, unless a compelling business interest exists, such a company policy may not trump the attorney-client privilege.