Attorney-Client Privilege Trumps Company's Email Policy

Stengart v. Loving Care Agency, Inc., 408 N.J.Super. 54, 973 A.2d 390 (2009)

Brief Summary
Despite company policy to the contrary, a former employee’s personal emails to her attorney were protected by the attorney-client privilege.

Complete Summary
Plaintiff Marina Stengart (“Stengart”) sued her former employer, Loving Care Agency, Inc. (“Loving Care”), for discrimination. Loving Care’s lawyer then extracted Stengart’s emails, including those sent to or from her Yahoo account, off the hard drive of her work laptop. Some of the emails were communications with Stengart’s attorneys discussing her plans to sue Loving Care. Stengart’s attorneys moved the court to order the return of all such emails. The trial court held that Loving Care had a right to the emails based on the company’s electronic communications policy and that this policy trumped the attorney-client privilege.

The appellate division reversed and held that Loving Care’s attorney acted unprofessionally by reading and not returning the emails. The court first noted that New Jersey courts will only enforce a unilateral employee policy if it reasonably furthers the employer’s legitimate business interests. Stengart’s emails, the court held, did not bear on Loving Care’s legitimate business interests. Although a company may have a legitimate interest in knowing how often an employee is attending to personal matters, the court noted, the company does not have a legitimate interest in knowing the content of those personal matters.

The court also held that Stengart’s emails were protected by the attorney-client privilege because she had done nothing to waive the privilege. The trial court had based its finding of waiver on the fact that Stengart “took a risk of disclosure of her communications and a risk of waiving the privacy she expected[.]” Id. at 75. But the appellate court found this reasoning unconvincing.

Finally, the court held that Loving Care’s attorney violated New Jersey Rule of Professional Conduct 4.4(b), which requires attorneys not to read documents that appear to have been inadvertently disclosed and to return such documents to whomever sent them. In applying these duties to the attorney, the court noted that the attorney’s good faith belief that the company owned the emails was inapposite and held the attorney should have let the court decide whether the company’s employee policy trumped the attorney-client privilege. The court declined to rule on sanctions for this violation; instead opting to let the chancery court determine an appropriate remedy.

Significance of Opinion
Jurisdictions are split when it comes to resolving the tension between the attorney-client privilege and company electronic communication policies. This opinion falls firmly on the side of the attorney-client privilege, but it is important to remember that these cases often turn on specific facts. For example, the clarity of the policy and the extent to which the employee may have been notified of the policy are likely important factors. See Scott v. Beth Israel Medical Center, 17 Misc.3d 934, 847 N.Y.S.2d 436 (N.Y.Sup. 2007) (holding that employee’s communications were not privileged; company policy clearly stated employees had no privacy, and plaintiff was clearly on notice of the policy). Whether Stengart was on notice of Loving Care’s policy was disputed, and the court found the meaning and scope of the policy elusive.