STENGART V. LOVING CARE AGENCY, INC. 990 A.2d 650 (2010) CASE BRIEF

STENGART V. LOVING CARE AGENCY, INC.

990 A.2d 650 (2010)

NATURE OF THE CASE: Loving (D), and its counsel (D) appealed a reversal of a trial court decision that held e-mails between the employee and her attorney on an employer-furnished computer were not privileged and denied the Stengart's (P) request to disqualify D's counsel.

FACTS: P, an employee of D, had been provided a laptop computer to conduct company business. Unbeknownst to P, browser software automatically saved a copy of each web page she viewed on the computer's hard drive in a 'cache' folder of temporary Internet files. In December 2007, P used her laptop to access a personal, password-protected e-mail account on Yahoo's website, through which she communicated with her attorney about her situation at work. She never saved her Yahoo ID or password on the company laptop. P left her employment with D and returned the laptop. In February 2008, P filed the pending complaint. D hired experts to create a forensic image of the laptop's hard drive, including temporary Internet files. Those files contained the contents of seven or eight e-mails P had exchanged with her lawyer via her Yahoo account. At the bottom of the e-mails sent by P's lawyer, a legend warns readers that the information 'is intended only for the personal and confidential use of the designated recipient' of the e-mail, which may be a 'privileged and confidential' attorney-client communication. Attorneys from the law firm (the 'Firm') representing D reviewed the e-mails and used the information in discovery. P's lawyer demanded that the e-mails be identified and returned. The Firm argued that Pt had no reasonable expectation of privacy in files on a company-owned computer in light of the company's policy on electronic communications (Policy). The Policy states that D may review, access, and disclose 'all matters on the company's media systems and services at any time.' It also states that e-mails, Internet communications and computer files are the company's business records and 'are not to be considered private or personal' to employees. It goes on to state that 'occasional personal use is permitted.' The Policy specifically prohibits 'certain uses of the e-mail system,' such as discriminatory or harassing messages. P's attorney requested the return of the e-mails and disqualification of the Firm. The trial court ruled that P waived the attorney-client privilege by sending e-mails on a company computer. P appealed. The Appellate Division reversed. It also found that D's counsel had violated RPC 4.4(b) by failing to alert P's attorneys that it possessed the privileged e-mails before reading them. Ds appealed.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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