Employers Cannot Review Password Protected Email Between Employee and Her Lawyer
Courts have only just started wrestling with the limits of online freedom in the workplace. A recent decision from the New Jersey Supreme Court provides some guidance. In the case of Stengart v. Loving Care Agency, the former employee left her job. She also left behind her employer issued laptop. On that laptop, she had sent various emails to her lawyer from a private non-work related Yahoo account. The account was password protected. But, the employer's experts were able to retrieve the password and review the emails to the lawyer.
Attorney client communications are, of course, privileged. The company, Loving Care (or not) had a general policy that employees waived any expectation of privacy when viewing email at work. But, the policy did not expressly apply to private email accounts and it did not warn employees that their private passwords could be retrieved from a hard drive. So, the New Jersey Supreme Court found that the employer's policy did not apply to password protected private email relating to lawful matters including attorney-client privileged communication. The emails between the employee and her lawyer should have remained private, said the court. The employer violated her expectation of privacy.
The employer's law firm did review the emails between the employee and her lawyer. They notified the plaintiff employee but not for many months. So, the New Jersey Supreme Court found that the defense firm violated disciplinary rules. The court referred the defense firm to the lower court for discipline. Ouch!
