Blog

3Sep, 09

Accessing your private e-mails from your own web-based e-mail account through your employer’s computer may permit the employer access to those e-mails. Such a result was discussed in the case of Marina Stengart v. Loving Care Agency, Inc., et al where the Superior Court of New Jersey, Appellate Division, ruled on June 26, 2009 that certain e-mails obtained by the employer, which were e-mails between the employee and her attorney, had to be returned to the employee. The relevant facts were as follows. Employee Marina Stengart was the Executive Director of Nursing at Loving Care Agency, Inc. until her resignation on January 2, 2008. The following month she filed an action against the company alleging, among other things, employment discrimination. As part of the employment relationship, Loving Care Agency provided Stengart with a laptop computer and a work e-mail address. Prior to Stengart’s resignation, she communicated with her attorneys by e-mail. These communications pertained to Stengart’s anticipated suit against the company and were sent from her work-issued laptop, but through her personal web-based password protected Yahoo e-mail account. After Stengart filed suit, the company extracted and created a forensic image of the hard drive from her computer. In reviewing Stengart’s internet browsing history, an attorney for Loving Care Agency discovered she had numerous communications between herself and her attorneys from the time period prior to her resignation with Loving Care Agency. Loving Care Agency’s attorney did not advise Stengart’s attorney that the image extracted from the hard drive included these communications. After it was discovered, this discovery dispute ensued resulting in the June 26, 2009 Order.

The Court in its 30-page decision focused heavily on the importance of the attorney/client privilege and specifically found that the policies undergirding the attorney/client privilege substantially outweighed the employer’s interest in enforcement of its unilaterally-imposed regulations. In other words, Yahoo e-mails sent and received by Stengart on Loving Care Agency’s laptop were not all ordered to be turned over, but only the e-mails exchanged between Stengart and her attorney. The Court further found that the trial court should have a hearing as to whether Loving Care Agency’s attorney should be disqualified from further representing Loving Care Agency in the case given his reading of those e-mails between Stengart and her attorney.

The federal Electronic Communications Protection Act protects the privacy of individuals using electronic communications such as e-mails. However, the courts have established that employers maintain ownership of their e-mails systems and consequentially have the right to monitor their use. Employers should have written employment policies that inform employees that they should have no expectation of privacy in their e-mail and internet usage through the company computers.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at dmarr@nashualaw.com.