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Ruling suggests limits on employer's access to personal e-mail

There can be a legitimate expectation of privacy, New Jersey judge rules

By , Network World
April 05, 2010 09:40 AM ET

Network World - Can employers read an employee's personal e-mail composed and sent via a corporate computer, and does the employer own that e-mail? Especially if it's an e-mail to a lawyer, which raises special questions of client-attorney privilege that invoke confidentiality?

Clouded views on privacy

There's often the assumption that all e-mail that employees write on company computers is under the ownership of the company, which when storing it can read it at any time, and companies typically spell out what they consider their rights in a formal corporate policy. But in a legal case that came to it under appeal, the New Jersey Supreme Court last week decided an employee should have had an expectation of e-mail privacy and confidentiality because she used a personal Webmail account, in this case Yahoo, not the corporate e-mail system.

That decision, handed down by the Supreme Court of New Jersey, Appellate Division, reversed the lower court's decision about the e-mail of Marina Stengart, who had filed a legal suit against her former employer, Loving Care Agency, a home-care services firm, alleging discrimination.

Stengart's lawyers and Loving Care's own team of lawyers had been squabbling over whether Loving Care, which had collected Stengart's e-mail after she filed suit against the company, had to turn over to Stengart's lawyers the half-dozen or so Webmail-based e-mails the company had managed to capture as forensic evidence.

These were e-mails Stengart had sent via her personal password-protected Yahoo account to her lawyers before her resignation; Stengart's lawyers also wanted Loving Care's lawyers disqualified in the case. Loving Care's lawyers argued Stengart had no reasonable expectation of privacy in files on a company-owned computer in light of the company's electronic communications policy.

Stengart had sent the e-mail via her Yahoo account via her work computer at the office, not her corporate e-mail account. Loving Care's lawyers argued that Stengart "had no reasonable expectation of privacy in files on a company-owned computer in light of the company's policies on electronic communications," a court document states. Stengart argued she had been given no warning that e-mail sent from a personal account would be monitored or stored.

According to a court document, Loving Care Agency's policy states the home care services firm may review, access, and disclose "all matters on the company's media systems and services at any time," and also stated that e-mail, Internet communications and computer files are the company's business records and are "not to be considered private and personal" to employees. It also stated "occasional personal use is permitted."

The trial court last year had rejected Stengart's arguments for privacy and confidentiality of the e-mail she had sent.

But last week the justices on the Supreme Court of New Jersey in the Appellate Division reversed that in its decision, stating, "This case presents novel questions about the extent to which an employee can expect privacy and confidentiality in personal e-mails with her attorney, which she accessed on a computer belonging to her employer."

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