PRIVACY IN THE WORKPLACE: SENDING PRIVATE EMAILS ON COMPANY COMPUTERS | Dallas, Texas Personal Injury Attorney Blog

How private are the emails you send from a company computer. The answer should scare you if you think the email you are sending from work is private. The New Jersey’s Supreme Court has ruled an employer was wrong in retrieving e-mails between a former employee and her attorney, even though they were sent from a company computer.

The unanimous decision published in Stengart v. Loving Care Agency is believed to be the first of its kind to reach a state Supreme Court. While the Court’s ruling makes it clear that just because a person is using a company computer doesn’t mean they leave all their rights to privacy at the door, don’t be so sure that the next email you send on a company computer or a company email account will be private.

Marina Stengart filed a lawsuit in 2008 against her employer, Loving Care, a northern New Jersey company that provides home-care nursing and health services, claiming discrimination based on gender, religion and national origin. Before Stengart left the company, she exchanged several e-mail messages with her attorney from a company-provided computer, but from her personal email account through Yahoo.com. The account was password-protected

Loving Care hired computer experts to retrieve the private emails between Stengart and her attorneys and then used those emails in preparing to defend the lawsuit Stengart filed against Loving Care. In court, the attorneys for Loving Care cited the statements in the company’s employee manual which states that e-mail communications “are not to be considered private or personal to any individual employee” and that Loving Care reserved the right to “review, audit, intercept, access, and disclose all matters on the company’s media systems and services at any time.”

The trial judge sided with the employer, but the Court of Appeals reversed the trial court’s decision and ordered the company to turn over all copies of the e-mails and to delete any record of them. In affirming the appellate decision, Supreme Court Chief Justice Stuart Rabner wrote that while a company has a right to establish policies governing computer use – and to discipline employees who violate them – even a stated policy that an employer could read an employee’s attorney-client communications would be unenforceable. “Employers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy,” This decision provides some limitations on the rights of the company to access and to review and to act upon emails sent by its employees. But if the emails at stake were not private emails with her attorney, the Court would likely have not protected the employee, and the company could very well have take disciplinary action against the employee without ever informing the employee of the reasons for its decision.

Attorney Peter Frazza, representing Stengart, said the ruling preserved the sanctity of the attorney-client privilege. “When people come to lawyers, they have to know they can speak honestly and candidly with them,” he said. The Supreme Court found that even though Loving Care’s attorneys didn’t illegally hack into Stengart’s computer account, they violated rules of professional conduct by reading the e-mails and not promptly notifying Stengart and her attorney. A lower court will decide what penalties the law firm could face, which include monetary sanctions and possible disqualification from the case.

Even though the employee eventually won in this case, the real message in this case is clear.

If you want to keep your emails private, use your own personal computer and a private email account, not an account that your employer provides. In this case, the employee eventually won, but in reality she lost a lot. Her opponent was able to retrieve access to her private emails and to disclose those to her previous employer that she was suing.

Employees need to understand that emails they send may not be as private as they believe.

Everyone should protect their email accounts and computers with a password as this is an objective indicator that the emails are intended to be kept private.

Employees should not use any company supplied computer or company email accounts to send private emails.

Employees should not even send private emails on a company computer through private email accounts as those are likely to be read by an employer.

Even though the Court eventually sided in her favor, Ms. Stengart’s private communications were eventually declared to be private because they were a uniquely private communication, a communication with her lawyers. It is very likely that the Court would have reached a different result if the emails at issue were emails to a friend.

It will be interesting to follow this case as it continues on and to see what type of disciplinary action is taken against the company’s attorneys for obtaining the emails, using them against the employee and for not immediately disclosing this information as our legal system is designed to prevent that type of behavior by attorneys.

If you value your private communications, take the time to send your emails and text messages from your own privately owned computers and email accounts.

Montes Law Group, P.C.

Attorney: Rachel Montes

1121 Kinwest Parkway, Suite 100

Irving, Texas 75063

Telephone (214) 522-9401