Stengart v. Loving Care Agency, Inc., 408 N.J.Super. 54, 973 A.2d 390 (2009)

Brief Summary
Despite company policy to the contrary, a former employee’s personal emails to her attorney were protected by the attorney-client privilege.

Complete Summary
Plaintiff Marina Stengart (“Stengart”) sued her former employer, Loving Care Agency, Inc. (“Loving Care”), for discrimination. Loving Care’s lawyer then extracted Stengart’s emails, including those sent to or from her Yahoo account, off the hard drive of her work laptop. Some of the emails were communications with Stengart’s attorneys discussing her plans to sue Loving Care. Stengart’s attorneys moved the court to order the return of all such emails. The trial court held that Loving Care had a right to the emails based on the company’s electronic communications policy and that this policy trumped the attorney-client privilege.

The appellate division reversed and held that Loving Care’s attorney acted unprofessionally by reading and not returning the emails. The court first noted that New Jersey courts will only enforce a unilateral employee policy if it reasonably furthers the employer’s legitimate business interests. Stengart’s emails, the court held, did not bear on Loving Care’s legitimate business interests. Although a company may have a legitimate interest in knowing how often an employee is attending to personal matters, the court noted, the company does not have a legitimate interest in knowing the content of those personal matters.

The court also held that Stengart’s emails were protected by the attorney-client privilege because she had done nothing to waive the privilege. The trial court had based its finding of waiver on the fact that Stengart “took a risk of disclosure of her communications and a risk of waiving the privacy she expected[.]” Id. at 75. But the appellate court found this reasoning unconvincing.

Finally, the court held that Loving Care’s attorney violated New Jersey Rule of Professional Conduct 4.4(b), which requires attorneys not to read documents that appear to have been inadvertently disclosed and to return such documents to whomever sent them. In applying these duties to the attorney, the court noted that the attorney’s good faith belief that the company owned the emails was inapposite and held the attorney should have let the court decide whether the company’s employee policy trumped the attorney-client privilege. The court declined to rule on sanctions for this violation; instead opting to let the chancery court determine an appropriate remedy.

Significance of Opinion
Jurisdictions are split when it comes to resolving the tension between the attorney-client privilege and company electronic communication policies. This opinion falls firmly on the side of the attorney-client privilege, but it is important to remember that these cases often turn on specific facts. For example, the clarity of the policy and the extent to which the employee may have been notified of the policy are likely important factors. See Scott v. Beth Israel Medical Center, 17 Misc.3d 934, 847 N.Y.S.2d 436 (N.Y.Sup. 2007) (holding that employee’s communications were not privileged; company policy clearly stated employees had no privacy, and plaintiff was clearly on notice of the policy). Whether Stengart was on notice of Loving Care’s policy was disputed, and the court found the meaning and scope of the policy elusive.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.

Register Today for the 8th Annual Law Firm General Counsel Forum: Risk Management in Troubled Times

Presented by Hinshaw & Culbertson LLP, The Hildebrandt Institute and WestLegalEdCenter

Date: December 2-3, 2009

Location

Thomson Reuters
Thomson Hall, 4th Floor
195 Broadway
New York, NY

Who Should Attend?

• Law Firm General Counsel
• Chief Human Resources Directors
• Chief Compliance Officers
• Human Resources Professionals
• Risk Management Partners

Register

Space is limited so register early by contacting WestLegalEdCenter at 1-800-241-0214 or by clicking on the link below. Provide offer code 000000.
http://westlegaledcenter.com/program_guide/course_detail.jsf?courseId=19390351&sc_cid=ws_hild

Topics Include

• Managing opportunities and risks in the current economy
• The evolving role of the general counsel
• Risks of disagreeing litigation services
• Implications of abandoning the hourly fee
• Legal issues surrounding laterals

Fee and Discounts

$1,495 for Law Firm Registration

5,000 for Non-Law Firm and Non-Corporate Law Department Registration (Insurance Professionals: Mention Hinshaw to Receive Law Firm Rate of $1,495)

Receive a 10% discount off the registration fee for all participants if you send three or more people from the same organization to the Forum.

CLE Credit

States have widely varying regulations regarding MCLE credit. Please note that some jurisdictions do not accredit Law Practice Management programs. WestLegalEdCenter is an approved provider in AK, CA, GA, IL, ME, MO, ND, NV, NY, OK, SC, VT and WV. Credit may be applied for in additional jurisdictions upon request and in accordance with state MCLE rules.

REGISTER NOW for the Ninth Annual Legal Malpractice & Risk Management Conference and receive a 10% Early Bird Discount before December 1, 2009

Attend the industry's premier annual event focused on current and important developments in the law and litigation of malpractice claims, legal malpractice insurance and risk management strategies. Each conference panel examines recent case law and significant developments throughout the last year. One and one-half days will be devoted to legal malpractice (March 3-4), and one and one-half days will be devoted to risk management (March 4-5). The conference will be held in Chicago at The Westin Chicago River North Hotel.

Earn up to 15 hours of CLE credit, including up to 6.50 ethics credit!

Conference Topics

Legal Malpractice Sessions (March 3-4)

• Standing to Sue, Privity and Duty of Disclosure
• Litigation/Litigation Attorney
• What's Your Little Secret? They Want to Know
• Judgmental Immunity — A Modern Look at the Legal Profession's Oldest Defense 
• Insurance Coverage Update: The Year in Review – Prior Knowledge Redux and the Definition of Professional Services
• 2009 LMRM Case Updates and Statutory Causes of Action
• Stump the Panel

Legal Malpractice/Risk Management Cross-Over Sessions (March 4)

• The Insurance Marketplace and Considerations
• Who is the Client and Standing to Sue – Successor Entities, Affiliates and Subsidiaries
• Advance Conflict Waivers, Screening and How to Do It

Risk Management Sessions (March 4-5)

• The General Counsel Forum
• Suits for Fees/Mandatory Fee Arbitration
• Risk Management Considerations in Restructuring and Winding-Up Law Firms
• Managing Client and Law Firm Data, and What Gives When Client and Firm Policies Conflict?
• On the Horizon – The Slow Motion Revolution

Registration Fees

$1,300 for the Entire Conference - March 3-5
$925 for the Legal Malpractice Sessions Only - March 3-4
$925 for the Risk Management Sessions Only - March 4-5

Discounts (maximum 15% discount per registration)

Returning registrants receive 5% off the conference price
Multiple registrants receive 15% off when two or more colleagues from the same company register for the conference
Early birds receive 10% until December 1, 2009

For more information, please visit www.LMRM.com or click here to Register Now!