What happens when two important privacy principles come into conflict?

Here are two generally accepted privacy principles of which you should be aware. First, generally speaking, unless a person knowingly waives this right, any communicat

ions that are just between that person and his/her attorney are privileged  (this is known as the “Attorney-Client Privilege”). That means, these communications cannot be discovered by another person, even if you have sued that other person. Second, most employers now have a computer use policy that states that employees should have no expectation of privacy for any e-mails or other communications sent from, received on, or stored in their work computers. Recently, a situation arose when these two principles collided.

Maria Steingart worked as Executive Director for Nursing for Loving Care Agency Inc. Loving Care gave her a laptop to use for company business; from there she could also access the Internet. Loving Care had a computer use policy as stated above Through her password protected Yahoo account, she communicated with her attorney related to a contemplated suit against Loving Care. When she left her employment act Loving Care, she returned the laptop. Later, she sued Loving Care claiming a violation of the New Jersey Law against Discrimination. In an effort to preserve electronic evidence for the litigation, Loving Care hired an expert to create an image of the laptop’s hard drive. Among the items retrieved were Internet files containing the contents of seven or eight e-mails  Steingart had exchanged with her lawyers through the Yahoo account.

Steingart tried to prohibit Loving Care from using these e-mails and sought sanctions for violation of the Attorney-Client Privilege. Loving Care, citing their computer use policy of which Steingart  was aware, claimed that Steingart should have known at the time that the messages, sent from the work laptop, would not be considered private. The trial level court agreed with Loving Care, but this was reversed on appeal, and the issue then went to the New Jersey Supreme Court.

The New Jersey Supreme Court decided in favor of Steingart.  Steingart v Loving Care 201 N.J.300 (2010).  They found that she had a reasonable expectation of privacy in the e-mails she exchanged with her attorneys. It is important to note that those e-mails were exchanged on the personal, password-protected e-mail account, and not the company e-mail account. That fact may have made all the difference. Although Steingart won on this issue on these facts, under a different set of facts she might not have.

There are two important lessons here. First is to know what your employer’s computer use policy is. Second, when communicating with your attorney, it is always a good idea to ask her to explain the circumstances under which your communications would or would not be protected.