Technology has changed our lives in profound ways. Few of us hand write letters or call our friends and relatives at their home telephone numbers. We email, text and tweet information whether at home, at work or in the car.
This information revolution has challenged the courts to resolve competing interests in the use of these new technologies. Many businesses have responded by enacting policies that define as “company property” any communications sent through company servers or equipment. These policies generally reserve the right of an employer to review, inspect and intercept all electronic communications. What happens if an employee uses a company issued laptop to send an email to her attorney through a personal, web-based email account? May the employer access and review those communications if their images are found on the computer’s hard drive? Put in the the broader context, does a company’s electronic communications policy trump the attorney-client privilege when an employee uses firm equipment to facilitate her communications?
No, according to Stengart v. Loving Care Agency, Inc. et al. In Stengart, an employee communicated with her attorney before she resigned from the company on a company issued laptop. After she resigned, the company extracted and created a forensic image of the hard drive. The company’s attorneys later discovered numerous email communications between plaintiff and her attorney. In response to the defendant’s disclosure of these emails in written discovery responses, the plaintiff requested, among other things, the return of all such documents and a ban of their use by the defendant on the basis of privilege.
In a broadly written opinion, the Appellate Division held “the company policy is of insufficient weight when compared to the important societal considerations that undergird the attorney-client privilege.” Moreover, the court seemed to suggest that an employer’s right to access, review and retain private email communications was limited because “a policy imposed by an employer, purporting to transform all private communiations into company property [made on company owned equipment] …furthers no legitimate interest.”
Stengart will not be the last word on this important and topical issue.