With all due respect to the trial court, in my March 9, 2009 post discussing this case I expressed my opinion that the trial judge's decision was incorrect and predicted that an interlocutory appeal would be forthcoming because of the far-reaching effects of the trial court's decision. Both predictions turned out to be accurate.
For the convenience of our readers, although I extensively commented on the facts of this case in my March 9, 2009 post, the brief facts of the case are as follows: The plaintiff was the executive director of nursing at Loving Care Inc. ("Loving Care"). During her employment, Loving Care provided plaintiff with a laptop computer and a work e-mail address. Loving Care apparently had a company wide policy indicating that all e-mails sent through the company's computer system constitute the company's personal property.
Plaintiff resigned from her position at Loving Care on or about January 2, 2008. Prior to her resignation, she was communicating with her attorneys about filing a lawsuit against Loving Care and used the company's laptop to send e-mails to her attorney by accessing her Yahoo! e-mail account. In other words, instead of using her personal e-mail account at the company to communicate with her lawyers, the plaintiff instead chose to send the e-mails through her private Yahoo! e-mail account.
Approximately 1 month after resigning from her positition at Loving Care, plaintiff filed an employment discrimination suit against Loving Care. This prompted Loving Care to create a forensic image of the hard driver from plaintiff's lap top computer. When Loving Care ultimately shared this information its attorneys they discovered numerous communications between plaintiff and her lawyers during the time period preceding her resignation. This discovery was not made immediately known to plaintiff or her attorneys.
A few months later when responding to plaintiff's written discovery demands in the course of pretrial discovery, Loving Care referenced and attached some of the e-mails exchanged between plaintiff and her lawyers thus prompting plaintiff to demand the return of this confidential information. When Loving Care refused, plaintiff filed a motion before the trial court contending that all such e-mails were protected by the attorney-client privilege and could not be used in the case. The trial court rejected plaintiff's argument, finding that no attorney-client privilege attached to the disputed e-mails because the company's electronic communications policy put plaintiff on sufficient notice that her e-mails would be treated as company property. The trial court determined that plaintiff "took a risk of disclosure" when in view of the company policy she nevertheless proceeded to send e-mails to her counsel through her work computer.
Nonsense said the Appellate Division, which granted leave to appeal the interlocutory decision of the trial court - a remedy that is sparingly granted due to the preference that appeals not be filed until the entire case has concluded.
". . . merely because the company owned the computer used to make private communications or used to access such private information during work hours -- furthers no legitimate business interest, " the Appellate Division concluded. Although the appellate court recognized that New Jersey employers may unilaterally establish company rules and policies through handbooks or manuals, the court opined that the regulated conduct should concern the terms of employment and "reasonably further the legitimate business interests of the employer."
The Appellate Division's opinion reveals a rather pragmatic view toward the realities of how much sensitive personal information is readily available to individuals by simply pointing and clicking on computers connected to the Internet:
Using a computer, individuals may access their medical records, examine activities in their bank accounts and phone records, file income tax returns, and engage in a host of other private activities, including, as here,e-mail an attorney regarding confidential matters. Regardless of whereor how those communications occur, individuals possess a reasonable expectation that those communications will remain private.
Weighing the company's claimed interest in ownership and access to all e-mail communications transmitted over its computers against the attorney-client privilege, the appellate court concluded that the attorney-client privilege must prevail because of the important societal considerations that underpin the privilege.
In this author's opinion, the fact that plaintiff thought carefully enough to send the e-mails through her Yahoo! account, as opposed to using her employee e-mail account, demonstrates that she expected those communications to remain private and not become property of the company.
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