[Affirmed: __ N.J. __ (2010)]

[NOTE: This case (pre-appeal) was previously reported in this Blog: "Workplace computers and the attorney client privilege."]

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The electronic age — and the speed and ease with which many communications may now be made — has created numerous difficulties in segregating personal business from company business. Today, many highly personal and confidential transactions are commonly conducted via the Internet, and may be performed in a moment’s time. With the touch of a keyboard or click of a mouse, 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, emailing an attorney regarding confidential matters. Regardless of where or how those communications occur, individuals possess a reasonable expectation that those communications will remain private. See Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 905 (9th Cir. 2008) (finding a reasonable expectation of privacy in text messages stored by a service provider), reh. denied, 554 F.3d 769 (9th Cir. 2009), petition for cert. filed, No. 08-1332 (U.S. Apr. 27, 2009).

A policy imposed by an employer, purporting to transform all private communications into company property — 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. See Western Dairymen Coop., supra, 684 P. 2d at 649. When an employee, at work, engages in personal communications via a company computer, the company’s interest — absent circumstances the same or similar to those that occurred in State v. M.A., 402 N.J. Super. 353 (App. Div. 2008) or Doe v. XYC Corp., 382 N.J. Super. 122 (App. Div. 2005) — is not in the content of those communications; the company’s legitimate interest is in the fact that the employee is engaging in business other than the company’s business. Certainly, an employer may monitor whether an employee is distracted from the employer’s business and may take disciplinary action if an employee engages in personal matters during work hours; that right to discipline or terminate, however, does not extend to the confiscation of the employee’s personal communications.

The court rejected the philosophy buttressing the trial judge’s ruling that, because the employer buys the employee’s energies and talents during a certain portion of each workday, anything that the employee does during those hours becomes company property. Although the court recognized the considerable scope of an employer’s right to govern conduct and communications in the workplace, the employer’s interest in enforcing its unilateral regulations wanes when the employer attempts to reach into purely private matters that have no bearing on the employer’s legitimate interests.

Moreover, in this case, the company’s ebbing interest in enforcing its regulations, as the means of prying into an employee’s private affairs, must be weighed against the employee’s considerable interest in maintaining the confidentiality of her communications with her attorney.

Communications between a lawyer and client in the course of their relationship and in professional confidence are privileged. N.J.S.A. 2A:84A-20. The scope of this privilege is defined by N.J.R.E. 504, which grants clients the following rights:
(a) to refuse to disclose any such communication, and (b) to prevent his lawyer from disclosing it, and (c) to prevent any other witness from disclosing such communication if it came to the knowledge of such witness (i) in the course of its transmittal between the client and the lawyer, or (ii) in a manner not reasonably to be anticipated, or (iii) as a result of a breach of the lawyer-client relationship, or (iv) in the course of a recognized confidential or privileged communication between the client and such witness.

The attorney-client privilege is venerable, Fellerman v. Bradley, 99 N.J. 493, 498 (1985), having been recognized in the English common law prior to our Nation’s birth, United Jersey Bank v. Wolosoff, 196 N.J. Super. 553, 561 (App. Div. 1984); see Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed.2d 584, 591 (1981). The privilege is “basic to a relation of trust and confidence” that is among “the oldest of the privileges for confidential communications, going back to the reign of Elizabeth.” State v. Kociolek, 23 N.J. 400, 415 (1957).

Over the years, “the primary justification and dominant rationale for the privilege has come to be the encouragement of free and full disclosure of information from the client to the attorney.” Fellerman, supra, 99 N.J. at 498. As a result, when the privilege applies it “must be given as broad a scope as its rationale requires.” Ervesun v. Bank of New York, 99 N.J. Super. 162, 168 (App. Div.), certif. denied, 51 N.J. 394 (1968). Both oral and written communications between attorney and client are protected by the privilege. Weingarten v. Weingarten, 234 N.J. Super. 318, 329 (App. Div. 1989). Email communications are “obviously protected by the attorney-client privilege as a communication with counsel in the course of a professional relationship and in confidence.” Seacoast Builders Corp. v. Rutgers, 358 N.J. Super. 524, 553 (App. Div. 2003).

The court held that there is no question — in this case — that the attorney-client privilege applies to emails and would protect them from the view of others. In weighing the attorney-client privilege, which attaches to the emails exchanged by plaintiff and her attorney, against the company’s claimed interest in ownership of or access to those communications based on its electronic communications policy, the court concluded that the latter must give way.

[See related Blog Post, by Mark J. Astarita, Esq., published in SECLaw.com - The Securities Law Blog.]

[See also related Blog Post, published in Compliance Building, a blog maintained by Doug Cornelius]
[See also related Blog Post, published in New Jersey Attorney Law Review Blog]

NOTE: Legal services include family law, divorce, child support, mediation, child custody and visitation, alimony and equitable distribution.

Workplace computers and the attorney client privilege – Part 2 originally appeared on NJ Family Issues on June 29, 2009.

[NOTE: this case has been REVERSED]

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The attorney client privilege [N.J.S.A. 2A:84A-20; N.J.R.E. 504] is not absolute, and is subject to waiver when “without coercion and with knowledge of his right or privilege, [a person] ma[kes] disclosure of any part of the privileged matter or consent[s] to such a disclosure made by anyone.” N.J.S.A. 2A:84A-29. Thus when a communication is made with knowledge that a third party is present or could be privy to the information, the attorney client privilege is waived.

Like any other form of communication, E-mails carry a risk of unauthorized disclosure to a third party. Despite this risk, lawyers and clients may communicate confidential information through E-mail with a reasonable expectation of privacy. See ABA Formal Opinion 99-413, dated March 10, 1999. A private E-mail written to an attorney over a web-based E-mail account from a personal computer is generally considered protected by the attorney client privilege despite the fact that the communication may be intercepted or viewed during transmission. Ibid.

However, when an employee sends an E-mail to their attorney through an E-mail account issued by their employer over their employer’s servers, several courts have found that such correspondence is generally not protected by the attorney client privilege if the employer maintains a policy warning its employees that E-mail correspondence from company issued E-mail accounts are subject to review. See Kaufman v. SunGard Invest. Sys., 2006 U.S. Dist. LEXIS 28149 (D.N.J. May 9, 2006); Scott v. Beth Israel Medical Center, 847 N.Y.S.2d 436 (Sup. Ct. 2007); In re Asia Global Crossing, 322 B.R. 247 (Bankr. S.D.N.Y. 2005).

When an employee has knowledge of the employer’s electronic communication policy which adequately warns that any and all internet use and communication conducted on the employer’s computer is not private to the employee and warns that E-mail and voice mail messages, internet use and communication and computer files are considered part of the company’s business and client records, such communications are not protected by such attorney client privilege and are then not to be considered private or personal to any individual employee.

In Kaufman v. SunGard Invest. Sys., 2006 U.S. Dist. LEXIS 28149 (D.N.J. May 9, 2006) (unpublished decision), the Federal District Court of New Jersey reviewed a magistrate judge’s application of New Jersey’s attorney client privilege law to E-mail sent from an employee to her attorney through her employer’s E-mail system. The court considered the employer’s electronic communication policy to determine whether the employee had a reasonable expectation of privacy.

The Kaufman court reasoned that any privilege that may have attached to the subject E-mail was waived because Kaufman had used her employer’s network with knowledge of her employer’s policy which stated that “’[c]ompany property’ included, for instance, ‘information stored on computers’ and ‘E-mail.’” Id. at *11. Accordingly, the court held that all information stored on the employer’s computer systems were the property of the employer and not protected by the attorney client privilege. Ibid.

Accordingly, the question of whether an employee has a reasonable expectation of privacy in a communication made on a work issued computer is based on the degree of notice the employer has provided to its employee regarding their right to privacy in electronic communications. See also Long v. Marubeni Am. Corp., 2006 U.S. Dist. LEXIS 76594 (S.D.N.Y. 2006)(holding that the attorney client privilege was waived when employees used their personal password protected E-mail accounts to communicate with their attorneys while at work on the employer’s computer with knowledge that personal use of company computers was prohibited and that there was no expectation of privacy in any communications made over the employer’s computers). Contra National Economic Research Associates v. Evans, 21 Mass. L. Rep. 337 (Sup. Ct. 2006)(finding that attorney client privilege does apply when employer’s electronic communication policy does not plainly explain that communication via web-based E-mail accounts are recoverable because they are saved on the computer’s hard drive as temporary internet files).

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Workplace computers and the attorney client privilege originally appeared on NJ Family Issues on February 5, 2009.