Thursday, April 29, 2010

Employee Email Privacy: Stengart's Chicken and Egg

Which came first, the chicken or the egg? In the world of privilege law, an expectation of privacy hatches into the attorney-client privilege. Enter Stengart v. Loving Care Agency. In this case, the New Jersey Supreme Court held that an employee had a reasonable expectation of privacy in personal, password-protected, web-based emails between her and her attorney, accessed on a company laptop.

An expectation of privacy arises from both a subjective and objective expectation. That is, the employee must personally expect privacy, and the expectation must be objectively reasonable. At one point, the opinion states:
[E]mployers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy. Because of the important public policy concerns underlying the attorney-client privilege, even . . . 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.
The opinion presumes a chicken, even if there's no egg. That is, it protects the privilege even before there's an expectation of privacy. It essentially mandates that employers create and preserve an employee's expectation of privacy on the company's laptop. This judicially created zone of privacy is limited, however, to web-based, password-protected, personal emails between an employee and his or her attorney.

This is a New Jersey Supreme Court opinion so it has no binding precedential value outside of New Jersey. It is, however, a case addressing an emerging area of the law. As such, it may provide guidance to other courts in other jurisdictions in the future.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

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