An employee using a laptop computer provided by her company for work purposes was able to access her own personal email account on Yahoo’s website. From this account she communicated with her attorney about her situation at work. Needless to say, she was not happy at work. When she eventually filed suit against the company, claiming wrongful discharge, retaliation and hostile work environment under New Jersey law, the attorneys representing the company in the action discovered her emails to her attorney and refused to disclose them in the lawsuit. The issue before the New Jersey Supreme court was whether the emails were protected by the attorney-client privilege. Stengart v. Loving Care Agency, Inc., 201 NJ 300 (2010).
Although the emails from the employee’s attorney had the typical confidentiality language, defense counsel argued that an employee had no right to privacy or to confidential communications if she was using the company computer and the company had a policy that said as much, and that she had no reasonable expectation of privacy under the circumstances. The court disagreed. The court held that the employee’s email was covered by the attorney client privilege.
In New York, a federal bankruptcy court in the case of In re Asia Global Crossing Ltd., 322 B.R. 247, (S.D.N.Y. 2005) developed the following four-part test to determine an employee’s reasonable expectation of privacy in his computer files and email: (a) does the company maintain a policy banning personal or other objectionable use; (b) does the company monitor the use of the employee’s computer and email; (c) do third-parties have the right of access to the computer or emails; and (d) did the company notify the employee, or was the employee aware of the use and monitoring policies?
Seems like the courts are still struggling with a bright line rule. Employers need to tread carefully.
