Court limits employers’ right to review emails

An employee’s email exchanges with her attorney on the company laptop were protected by attorney-client privilege, ruled the New Jersey Supreme Court. Although not binding outside of New Jersey, the court’s ruling provides useful guidance on the limits of electronic communications policies. In this case, the employee used a personal, password-protected, web-based email account to communicate with her attorney, and she never saved the password on the company’s computer. When she left her job and filed a lawsuit, the company hired a computer expert to make a forensic copy of the laptop’s hard drive. Unbeknownst to the employee, the messages were stored in temporary internet files. Because the company’s lawyers didn’t immediately turn the messages over to the employee’s lawyer, a lower court will now weigh sanctions against the company and the lawyers (Stengart v. Loving Care Agency, Inc., NJ Sup Ct, March 2010).

Tips: The court said that even if the company had an airtight policy that covered the use of personal, password-protected, web-based email accounts that are accessed from company computers, it still couldn’t override the attorney-client privilege. Instead, the best an employer can do is to prohibit inappropriate use of company resources. One solution is to block access to web-based personal email accounts. Another option is to discipline for excessive personal use during work hours. See the electronic communications policy in our “Model Employee Handbook,” available from your Vigilant staff representative.