PERSONAL EMAILS TO ATTORNEY ON COMPANY'S COMPUTER NETWORK ARE PRIVILEGED

Employee’s Personal Emails to Attorney on Employer’s Computer Network are Privileged in NJ Case.

Overview: A New Jersey trial court recently ruled in an employment and shareholder dispute that an employee’s personal emails sent to his attorney through his company’s electronic communications system were protected from discovery by the attorney-client privilege. This ruling in Ferrer v. Stahlwerk Annahutte Max Aicher Gmbh & Co, No. BER-C-323-13 (N.J. Super. Ct. Ch. Div. June 9, 2014), is consistent with governing New Jersey law that appears to place great weight on the privacy of attorney-client communications while at the same time requiring employers to have clear and reasonable policies in place regarding employees’ personal use of work computers.

Summary: The Chancery Court in Ferrer emphasized that it was not imposing a blanket rule protecting employee emails to an attorney, but rather reaching its conclusion through a fact-sensitive analysis that relied heavily on the absence of a company policy or monitoring practices regarding employees’ use of the company’s electronic communications network. Because of the relatively informal company atmosphere, the absence of any company policy regarding emails, and the employee’s knowledge that the company did not monitor his emails, along with the well-recognized confidentiality of attorney-client communications, the court held that the employee had a reasonable expectation of privacy in his emails to his attorney in which he sought legal advice.

The Chancery Court drew its analysis from the New Jersey Supreme Court’s decision in Stengart v. Loving Care Agency, Inc., 201 N.J. 300 (2010), which used a common law expectation-of-privacy approach to employee claims of email privacy vis-à-vis private employers. (The Court noted that the standards may be different in the case of a government employer, which would implicate the equivalent of a Fourth Amendment expectation-of-privacy analysis). Under Stengart’s private-sector framework, whether an employee’s claim of email privacy is valid depends on the employee’s subjective and objective expectations of privacy. And an important consideration is how clear the company polices are on employee use of the company network (or even a personal account like Yahoo on a company-owned device) to send personal emails and on the company’s right to read employee emails. The fact that the emails at issue were attorney-client communications lent them extra weight in favor of privacy. The Stengart Court encouraged employers to adopt reasonable – i.e., not zero-tolerance – policies and practices regarding employee personal email, and noted that employers can certainly discipline or terminate employees who abuse those policies, but that doesn’t necessarily mean that the company is then free to do what it wants with those emails. Employees (and ex-employees) may still have valid claims of privacy or privilege with respect to personal emails sent over employer networks or via employer devices.”

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