A recent New Jersey decision, Stengart v. Loving Care Agency, raises questions about the limits of the attorney client privilege when an employer performs a forensic examination of the computers used by a former employee. Because it is typical for employers to conduct a forensic examination of a former employee’s computers when the employee is bound by a non-compete, these privilege issues should be anticipated in any non-compete case.
In Stengart, the employer provided the employee with a laptop and a work email address. Prior to her resignation, the employee communicated with her lawyer by email about a possible lawsuit against the employer. These communications were sent on a personal, web-based Yahoo account. After the employee resigned, the employer conducted a forensic examination of the hard drive on the laptop and was able to review the emails sent on the personal account. Once the employee discovered that the employer had reviewed these confidential communications, she demanded that they be returned. The employer refused and the employee was forced to seek relief from the trial court, which denied the motion to require the employer to return copies of the emails sent by the employee to her lawyer.
On appeal, the New Jersey Appellate Court held that the communications were privileged and directed that the emails should be returned. It also directed employer’s counsel to delete any such emails from the hard drive where they were stored. The case was remanded for a hearing to determine whether employer’s lawyers should be disqualified from representing the employer.
Employees should not assume that this result was inevitable. The law on this issue is still being developed and the New Jersey court struggled to make its decision. The employer argued that it had adopted a policy that all emails sent on company computers were consider company property. This argument led the court to balance the employer’s interest in enforcing its regulations against the employee’s interest in the confidentiality of her communications with her lawyer.
In 2007, a New York court reached a different conclusion than Stengart when it held that emails sent by plaintiff to his lawyer were not entitled to the attorney client privilege protection when the plaintiff had used the employer’s email system.
Lessons can be learned from these cases by both employees and employers.
Employees need to recognize that a forensic examination of a work computer’s hard drive may allow an employer to review not only the emails sent on the employer’s email system, but also the emails sent by the employee using a personal email account. Employees should communicate with counsel through their own personal computers, not through any computer at work.
On the other hand, employers need to recognize the importance of instituting a plain, clearly-stated policy about email communications through computers furnished by the employer. Any such policy may be enough to overcome any assertion of the attorney client privilege.
Colorado has not considered these issues that test the limits of the attorney client privilege. But it is important to note that Colorado has adopted a different version of the rule of professional conduct that influenced the appellate court in Stengart.