May 2010 Parking - 8

Legal Matters Michael Stevens
New Jersey Supreme Court Rules That Employee Had Privacy Right with Respect To E-Mail Communications with Her Attorney on Company Laptop
On March 30, 2010, the New Jersey Supreme Court ruled that attorneys for an employer violated the privacy rights of a former employee and the rules of professional conduct by reading e-mails the employee sent to her counsel on a company laptop through her personal password protected email account. Stengart v. LovingCare Agency, Inc. 2010 WL 1189458 (N.J. March 30, 2010) Stengart was LovingCare’s Executive Director of Nursing. She filed suit against the Company and several individuals for among other things, alleged constructive discharge because of a hostile work environment, retaliation and harassment based on gender, religion and national origin. On several days in December 2007, Stengart used her laptop to access a personal, password-protected e-mail account on Yahoo's website, through which she communicated with her attorney about her situation at work. She never saved her Yahoo ID or password on the company laptop. Not long after, Stengart left her employment with LovingCare and returned the laptop. On February 7, 2008, she filed the lawsuit. In an effort to preserve electronic evidence for discovery, in or around April 2008, LovingCare’s lawyers hired experts to create a forensic image of the laptop's hard drive. Among the items retrieved were temporary Internet files containing the contents of seven or eight e-mails Stengart had exchanged with her lawyer via her Yahoo account. LovingCare’s lawyers read the e-mails and intended to use them in their defense. A legend appeared at the bottom of the e-mails that Stengart's lawyer sent. It warned readers that THE INFORMATION CONTAINED IN THIS EMAIL COMMUNICATION IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT NAMED ABOVE. This message may be an Attorney-Client communication, and as such is privileged and confidential. If the reader of this message is not the intended recipient, you are hereby notified that you have received this communication in error, and that your review, dissemination, distribution, or copying of the message is strictly prohibited. If you have received this transmission in error, please destroy this transmission and notify us immediately by telephone and/or reply email. Stengart’s lawyer argued that the e-mail communications were private and privileged. LovingCare’s counsel argued that Stengart had no expectation of privacy in the e-mails, and that the attorney-client privilege was waived because of a Company policy that provides in pertinent part: The company reserves and will exercise the right to review, audit, intercept, access, and disclose all matters on the company's media systems and services at any time, with or without notice.

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“Stengart’s lawyer argued that the e-mail communications were private and privileged.”

National Parking Association Parking May 2010

May 2010 Parking

Table of Contents for the Digital Edition of May 2010 Parking