Discovery Resources

By Fernando M. Pinguelo and Andrew K. Taylor

From the second we stepped foot in law school we learned that the attorney-client privilege was sacrosanct. While by no means absolute, we knew it was pretty hard to gain access to the communications between an attorney and client. Waiver just became a little more likely in New Jersey. A state trial court decision underscores the reality that email communication is too often treated informally and we as attorneys can no longer assume a client’s “personal” email account is truly personal. For while the account itself may be, the means by which the message was sent may not.

Recently, a New Jersey trial court had occasion to determine whether an employee’s use of her employer’s computer and server to communicate with her lawyer waived the attorney-client privilege. In Stengart v. Loving Care Agency, Inc., docket no. BER-L-858-08, the court held that it did; and the ruling highlights for employers the importance of having a detailed employee handbook and technology system protocol in place; and for lawyers the importance of making sure that communications from clients come by way of truly personal means.

Loving Care Agency is in the business of providing home care services for children and adults. The plaintiff, Maria Stengart, was the Director of Nursing for all of Loving Care’s branches as well as the Branch Manager at Loving Care’s Fort Lee office. Plaintiff was also one of the first two employees when Loving Care first opened for business in 1994.

Loving Care maintains an employee handbook which is distributed to all employees and which is also available to employees electronically via Loving Care’s servers. During plaintiff’s tenure as Director of Nursing and Branch Manager for Loving Care, she assisted in the creation and distribution of the employee handbook. Among other things, the handbook governs an employee’s use of Loving Care’s computers and other technology resources. Under a section entitled “Electronic Communications,” the handbook provides:

• Technology resources are considered company assets
• Email and voice mail messages, internet use and communication, and computer files are considered part of the company’s business and client records. Such communications are not to be considered private or personal to any individual employee.
• The principal purpose of electronic mail is for company business communications. Occasional personal use is permitted; however, the system should not be used to solicit for outside business ventures.
• Certain uses of the email system are specifically prohibited, including but not limited to … job searches or other employment activities outside the scope of company business.

During her employment at Loving Care, plaintiff was provided with a company-issued laptop computer and assigned a Loving Care email account for business use. Plaintiff also maintained a personal email account through Yahoo. Plaintiff occasionally accessed her Yahoo account to write emails during work hours on her company-issued laptop.

In December 2007, plaintiff resigned from Loving Care. Two months later she filed suit against Loving Care alleging that the hostile work environment had led to her constructive discharge. In April 2008, Loving Care’s counsel in the employment lawsuit caused to have made an image of plaintiff’s laptop computer hard drive. The image preserved the electronic information contained on plaintiff’s employer-issued laptop computer. The hard drive was then sent to a company that could restore and recover deleted information located on the hard drive.

In October 2008, Loving Care served plaintiff its Answers to plaintiff’s first set of interrogatories. In response to an interrogatory, Loving Care stated that it had obtained information contained in “email correspondence from Ms. Stengart’s office computer on December 12, 2007 at 2:25 p.m.” between plaintiff and her counsel. This email was uncovered by the company hired to restore and recover deleted information located on the hard drive of plaintiff’s employer-issued laptop. The email in question was sent from plaintiff’s Yahoo account to her attorney.

Loving Care’s answer to this interrogatory prompted plaintiff to demand that all emails between her and her attorney held by Loving Care be returned or destroyed. Plaintiff claimed that the attorney-client privilege protected all such emails. Loving Care refused to return or destroy the emails, claiming that the content of the emails was not protected by the attorney-client privilege because plaintiff waived the privilege by using Loving Care’s computer and server during business hours to make the communication. Plaintiff thereafter filed an Order to Show Cause alleging the Loving Care’s attorneys breached her attorney-client privilege when Loving Care recovered and retained email correspondence made between her and her attorney.

The court began its opinion by acknowledging that the law recognizes an employer’s need to monitor the computer and internet usage of its employees for the purpose of protecting its business rights and to control its equipment. The court also noted that nothing in the law prohibits an employer from establishing policy that notices employees that its technology resources are considered company assets or that email messages and internet use and computer files are considered a part of the company’s business. Or a policy that email communications through the use of a company’s technology resources are not to be considered private or personal to an individual.

On the other hand, however, the court noted that the law does recognize that an employee who uses computers in the work place should be afforded a reasonable expectation of privacy. For example, if an email is a communication between a lawyer and client, it is initially presumed protected by the attorney-client privilege. The privilege, however, is subject to waiver when “‘without coercion and with knowledge of his right or privilege, a person makes disclosure of any part of the privileged matter or consents to such a disclosure made by anyone.’ Thus, when a communication is made with knowledge that a third party is present or could be privy to the information, that attorney-client privilege is waived.”

Specifically, the court addressed the issue of whether a communication between an employee and her attorney through a personal, password protected, web-based email account, but made on the employer’s computer via the employer’s server during business hours, is protected by the attorney-client privilege where the employer maintains an employee handbook that expressly governs the use of electronic communications with company-issued equipment, resources, and time.

The court considered Loving Care’s electronic communication policy to determine whether plaintiff had a reasonable expectation of privacy. The question of whether an employee has a reasonable expectation of privacy in a communication made on a work-issued computer is based on the degree of notice that the employer provides to its employees regarding their right to privacy in electronic communications. Here, Loving Care had a detailed policy on such communications, essentially stating that all such communications are not to be considered personal or private to the employee. Moreover, plaintiff had at the least constructive knowledge of the policy, as she helped create and distribute the handbook.

The court determined that Loving Care’s policy placed plaintiff on notice that all of her internet-based communications are not to be considered private or personal. In addition, Loving Care’s policy put employees on notice that the technology resources made available to employees were to be used for work-related purposes, particularly during business hours. The court found that the policy adequately warns employees that there is no reasonable expectation of privacy (not outright prohibition of use) with respect to any communication made on company issued laptop computers and servers, regardless of whether the email was sent from plaintiff’s work email account or her personal web-based email account. It was with Loving Care’s technology resources, laptop computer, and company time that plaintiff communicated with her lawyer.

Thus, the court found that when plaintiff decided to use company time, equipment, and resources to communicate with her lawyer, she did so with knowledge that such use would not be personal or private to her. Plaintiff’s choice of using her employer’s resources to communicate with her attorney was her voluntary choice; and the court held that it constitutes a waiver of her attorney-client privilege. To learn more, visit www.eLLblog.com.

 

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Fernando M. Pinguelo, a partner of Norris McLaughlin & Marcus and Co-Chair of its Electronic Discovery Group, devotes his practice to complex litigation and eDiscovery. A leader in the emerging area of eDiscovery, Fernando works with clients to develop strategies to manage issues related to electronic documents. Notably, Fernando was involved in New Jersey’s first case addressing its eDiscovery rule amendments, and lectured at the Judicial College on the topic. He created eLessons Learned (www.eLLblog.com), an eDiscovery best practices blog and teaches an eDiscovery course at Seton Hall Law School. Fernando can be reached at fmp@nmmlaw.com.

Andrew K. Taylor, an associate with the firm, practices in the firm’s Litigation Group. While at law school, Andrew worked with the UMDNJ Department of Legal Management. Prior to law school, Andrew worked in the area of environmental health and inspection. Andrew can be reached at aktaylor@nmmlaw.com

 

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Filed under Case Law & Rules, Home Page Featured, State Rules.