Bergen County Judge Rules No Attorney-Client Privilege Attaches to E-Mail Sent by Employee’s Personal Yahoo! Account While Using Company’s Computer

Before Maria Stengart quit her job, she was already making plans to sue her employer. She e-mailed her lawyer during business hours from her company-issued laptop, though she was circumspect enough to use her personal Web-based Yahoo e-mail account. It was not until discovery in the ensuing hostile-workplace, constructive-discharge case that she learned company lawyers had a copy of the message, which was automatically saved on the laptop's hard drive as a temporary file.

Now a Bergen County judge, Estella De La Cruz, has held the e-mail isn't protected as an attorney-client communication, finding Stengart waived the privilege by using the company computer and network even though she sent the e-mail from her personal e-mail account with Yahoo!. The ruling, in Stengart v. Loving Care Agency , BER-L-858-08, is a first for a New Jersey state court and one of only a few across the country to deal with the factual scenario presented.

The other cases cited by De La Cruz turned on whether the employer had a clear policy putting the employee on notice that e-mails sent on company systems are not private. One of the cases De La Cruz cited was Kaufman v. SunGard Investment Systems , 05-Civ.-1236, a New Jersey federal case in involving e-mails between an employer and her lawyers recovered from company laptops after the employee deleted them. In 2006, U.S. District Judge Jose Linares upheld a U.S. magistrate judge's ruling that the employee waived the privilege by failing to take reasonable steps to protect the e-mails and by using the company network with knowledge that company policy allowed searching and monitoring e-mails.

Stengart was employed by Loving Care Agency (“Loving Care”), a home health-care company based in Fort Lee, New Jersey. Loving Care maintains an employee handbook which is distributed to staff and made available on the company’s computer servers, which warned that e-mail and voice-mail messages "are considered part of the company's business and client records" and "are not to be considered private or personal to any employee." The handbook prohibits using the e-mail system for job searches, "other employment activities outside the scope of the company business" or for "solicitation of outside business ventures." It allows "[o]ccasional personal use."

Stengart, the director of nursing, had worked for Loving Care since 1994 and helped create and distribute the handbook. "Consequently, when plaintiff decided to use company time, equipment and resources to communicate with her attorney regarding the terms of her resignation from Loving Care, she proceeded with knowledge that such computer use and communications would not be private or personal to her," Judge De La Cruz remarked. Stengart took the risk of waiver by the method of communication she chose, said De La Cruz, finding Stengart's avowed unawareness of the policy "not persuasive" in light of her high position, long tenure at Loving Care and her work on the handbook.

With all due respect to Judge De La Cruz, I respectfully disagree with her decision. The attorney-client privilege is one that is deeply rooted in American jurisprudence. The central purpose behind the privilege is that a client should be allowed to communicate with his/her attorney without fear of the communication being disclosed to others. The fact that Stengart used her own personal Yahoo! e-mail account as opposed to the company’s e-mail server undoubtedly establishes that she did not use the “company’s e-mail system” as contemplated by the employee handbook Consequently, the attorney-client privilege should apply. Due to the far-reaching aspects of this ruling, I expect that an interlocutory appeal will be forthcoming.