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Employers Have Limited Access To Workers' Personal Emails, Ruling Suggests

DAVID PORTER   03/31/10 09:35 AM ET   AP

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TRENTON, N.J. — In a decision that could set new ground rules for Internet privacy in the workplace, 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 7-0 ruling published Tuesday in Stengart v. Loving Care Agency is believed to be the first of its kind to reach a state Supreme Court, attorneys involved in the case said.

"Courts are looking more closely at privacy claims in the digital worklplace," said Marc Rotenberg, executive director of the Electronic Privacy Information Center, a Washington, D.C.-based public-interest research group. "Just because a person is using a company computer doesn't mean they leave all their rights to privacy at the door."

The case stemmed from a lawsuit Marina Stengart filed in 2008 against 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 password-protected Yahoo e-mail account.

Computer experts retrieved the e-mails, and Loving Care's attorneys used them in preparing to defend the lawsuit.

In court, they argued that the company's employee manual clearly 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."

A trial court sided with the company, but an appellate panel reversed the decision and ordered the company to turn over all copies of the e-mails and 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," Rabner wrote.

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.

"The court has now clarified the law in this case," said Peter Verniero, a former state Supreme Court justice and former state attorney general representing the firm, Sills Cummis and Gross. "Although we are disappointed it didn't accept our position on the e-mails, the court agreed that we didn't act in bad faith. The client is moving forward to the next phase in this case."

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Filed by Bianca Bosker  |