{"id":4011,"date":"2010-06-22T15:17:37","date_gmt":"2010-04-01T03:48:06","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-04-01T03:48:06","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4011","title":{"rendered":"NJ: Reasonable expectation of privacy in personal e-mail on company computer"},"content":{"rendered":"

In a civil case, a private company’s employee who used the company computer to exchange e-mails with her attorney had a reasonable expectation of privacy in the e-mail. The e-mails were gathered as a part of defending a civil case when the company e-mail was reviewed. Stengart v. Loving Care Agency, Inc.,<\/a> 201 N.J. 300, 990 A.2d 650 (2010):<\/p>\n

Applying the above considerations to the facts before us, we find that Stengart had a reasonable expectation of privacy in the e-mails she exchanged with her attorney on Loving Care’s laptop.<\/p>\n

Stengart plainly took steps to protect the privacy of those e-mails and shield them from her employer. She used a personal, password-protected e-mail account instead of her company e-mail address and did not save the account’s password on her computer. In other words, she had a subjective expectation of privacy in messages to and from her lawyer discussing the subject of a future lawsuit.<\/p>\n

In light of the language of the Policy and the attorney-client nature of the communications, her expectation of privacy was also objectively reasonable. As noted earlier, the Policy does not address the use of personal, web-based e-mail accounts accessed through company equipment. It does not address personal accounts at all. Nor does it warn employees that the contents of e-mails sent via personal accounts can be forensically retrieved and read by the company. Indeed, in acknowledging that occasional personal use of e-mail is permitted, the Policy created doubt about whether those e-mails are company or private property.<\/p>\n

Moreover, the e-mails are not illegal or inappropriate material stored on Loving Care’s equipment, which might harm the company in some way. See Muick v. Glenacre Elecs., 280 F.3d 741, 742-43 (7th Cir. 2002); Smyth, supra, 914 F. Supp. at 98, 101; XYC Corp., supra, 382 N.J. Super. at 136-40. They are conversations between a lawyer and client about confidential legal matters, which are historically cloaked in privacy. Our system strives to keep private the very type of conversations that took place here in order to foster probing and honest exchanges.<\/p>\n

In addition, the e-mails bear a standard hallmark of attorney-client messages. They warn the reader directly that the e-mails are personal, confidential, and may be attorney-client communications. While a pro forma warning at the end of an e-mail might not, on its own, protect a communication, see Scott, supra, 847 N.Y.S.2d at 444, other facts present here raise additional privacy concerns.<\/p>\n

Under all of the circumstances, we find that Stengart could reasonably expect that e-mails she exchanged with her attorney on her personal, password-protected, web-based e-mail account, accessed on a company laptop, would remain private.<\/p><\/blockquote>\n

How this will play in criminal cases remains to be seen.<\/p>\n","protected":false},"excerpt":{"rendered":"

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