The New Jersey Supreme Court recently held that an employee has a reasonable expectation of privacy in personal e-mails sent from an employer-issued laptop. 

In Stengart v. Loving Care Agency, Inc., the plaintiff had been issued an employer-owned laptop which she utilized to send e-mails from her personal Yahoo account to her attorney in anticipation of a lawsuit she intended to file against the employer.  The plaintiff resigned and subsequently filed suit against the employer for violations of New Jersey’s Law Against Discrimination (LAD). 

As part of its discovery preparation, the employer extracted and created a forensic image of the hard drive from the plaintiff's laptop, which she had returned upon her resignation.  In reviewing plaintiff's Internet browsing history, the employer’s attorney discovered numerous communications between her and her attorney from the time period prior to her resignation.  The employer’s attorney referenced some of the e-mails in discovery responses, prompting the plaintiff’s attorney to demand the return of all the e-mails and their copies as protected by the attorney-client privilege.  The trial court rejected the plaintiff’s attorney’s request, holding that the emails were not protected by the attorney-client privilege because the employer's electronic communications policy placed the plaintiff on sufficient notice that her e-mails would be viewed as company property.  

On appeal, the New Jersey Supreme Court reversed, holding that the plaintiff could reasonably expect that e-mail communications with her attorney through her personal e-mail account would remain private, and that sending and receiving them via an employer-owned laptop did not eliminate the attorney-client privilege that protected them. Furthermore, the Supreme Court held that by reading e-mails that were at least arguably privileged and failing to notify the plaintiff’s attorney promptly about them, the employer’s attorney breached the Rules of Professional Conduct.    

The employer argued that its employees have no expectation of privacy in their use of employer-owned computers based on the employer's Electronic Communications Policy, which stated, in relevant part, that e-mails, internet use and communication and computer files were considered part of the employer’s  business and client records. In deciding for the plaintiff, however, the Supreme Court highlighted the fact that the Electronic Communications Policy was not clear whether the use of personal, password-protected, web-based e-mail accounts via employer-owned equipment was covered.  The Electronic Communications Policy also did not warn employees that the contents of such e-mails are stored on a hard drive and can be forensically retrieved and read by the employer.  The Supreme Court opined that the plaintiff had demonstrated that she had a subjective expectation of privacy in e-mails sent to and from her attorney as she had utilized her personal, password-protected, webmail-based e-mail account, as opposed to the employer’s e-mail account.  She also did not save the password on the laptop or share it in some other way with the employer.  In light of the ambiguous language of the Electronic Communications Policy and the attorney-client nature of the communications, her expectation of privacy was also objectively reasonable.

In conclusion, the Supreme Court noted that its holding did not mean that employers cannot monitor or regulate the use of workplace computers.  Companies are free to adopt lawful policies relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies.  However, the Supreme Court’s decision also demonstrates that such policies must be specific enough to put employees on notice of any potential surveillance of personal e-mail accounts. 

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