Previously this blog has examined the extent an employer can monitor employee activity, including emails an employee sends out through her work email. A commenter to that post noted a case involving an employee who emailed her attorney while at work, using a work computer but through her own personal, password-protected email account. The employer obtained those emails and wanted to use them in a subsequent lawsuit initiated by the employee, but the employee claimed that the emails were subject to the attorney-client privilege and thus were protected from use. The Superior Court of New Jersey, in Stengart v. Loving Care Agency, Inc., upheld the privilege. So from that decision, it appears likely that an employee sending an email through her Gmail account while on her work computer would be protected, while sending an email through her work email would not be.
But as a new article in the New York Law Journal explains, courts have been all over the place on this issue. The article summarizes a number of opinions on the matter to try and distill basic rules for employees and employers to govern themselves by.
“These cases hold two clear lessons for counsel for employers,” the article states. “First, employers need to have very carefully formulated, broadly worded policies regarding employees’ lack of expectation of privacy, that are diligently and repeatedly circulated to all employees. This will maximize the likelihood that it will be permissible to capture and use employees’ personal communications both for internal administrative, disciplinary and, if necesssary, litigation purposes — and will minimize the risk of an allegation of violation of the Stored Communications Act. The second lesson to be learned from these cases . . . is that whenever an attorney receives potentially privileged or confidential information relating to the opposing party, that attorney should carefully consider how that information was obtained. . . . The safest course of action may be to promptly notify opposing counsel about a lawyer’s receipt of any confidential or privileged information.”
This article is required reading for GCs and employers that seek to enforce policies allowing employer monitoring of employee email use. The course of the law is still in flux, so employers need to stay current in order to have the best chance of enforcement.
