The technical details involved in communicating via a Web mail service such as Google’s G-Mail or Yahoo! Mail are not something that most users think about often, or perhaps ever. It may appear to a user that all of the computing operations involving the use a Web mail service take place remotely, on the servers of the Web mail service, but that may not be the case. Unbeknownst to most users, some Web mail services save “cache” or temporary files on the user’s local computer, files that may contain copies of the user’s e-mails.
If that local computer belongs to an employer, the employee may have unknowingly exposed the contents of personal e-mail to scrutiny by the employer. A New Jersey court recently held that an employee who accessed her personal Web mail account using her employer’s laptop not only waived her privacy rights in the contents of those e-mails, she waived her attorney-client privilege in the contents as well.
In Stengart v. Loving Care Agency, Inc., No. BER-L-858-08 (Super. Ct. Law Div. Feb. 5, 2009) (unpublished) (posted Mar. 5, 2009), the plaintiff resigned from her position at the defendant employer and then brought an action alleging that she had left because of a hostile work environment. In the course of discovery, the plaintiff learned that the employer had imaged the hard drive of the employer-issued laptop computer that she had used during her employment. Contained on that hard drive were temporary Internet files that contained the contents of e-mail sent by the plaintiff to her attorney via her personal Yahoo Web mail account.
To a certain extent, the ruling is unremarkable in that generally, courts are willing to enforce the provisions of employer electronic communications policies according to their terms. In this case the employer’s employee handbook contained an electronic communication policy that stated, among other things, that “e-mail and voice mail messages, internet use and communication and computer files … are not to be considered private or personal to any individual employee.”
In a number of cases, the communications at issue have involved attorney-client communications. Stengart v. Loving Care Agency cites two such cases, which reached opposite results on whether the privilege was waived. Compare Long v. Marubeni Am. Corp., 2006 U.S. Dist. LEXIS 76594 (S.D.N.Y. 2006) (holding that there was a waiver) with National Economic Research Associates v. Evans, 21 Mass. L. Rep. 337 (Sup. Ct. 2006) (holding that the privilege is not waived where the employer’s communication policy does not warn employees that communications via Web-based e-mail accounts are recoverable).
The issue of waiver of privilege was also addressed in In re Asia Global Crossing, 322 B.R. 247 (Bankr. S.D.N.Y. 2005) (privilege was held not waived where existence of a communications policy providing notice of employer surveillance of e-mails was not adequately established). The waiver issue was also addressed in a case involving spousal privilege, Sprenger v. The Rector and Board of Visitors of Virginia Tech, (W.D. Va. June 17, 2008) (ordering a hearing to determine whether, e.g., the employer’s communications policy was adequately disseminated to employees, whether employees were aware of the policy, and whether it was regularly enforced).
In Stengart, the court refused to restrain the employer’s counsel from further use of the discovered e-mails. The court concluded that the communications policy covered the use of the employer’s “technology resources” and thus encompassed not only the use of the employer’s e-mail client, but also the use of the employer’s laptop computer and network system to access a personal e-mail account, as well as the company time that the plaintiff used to undertake her communications during business hours:
Consequently, when plaintiff decided to use company time, equipment and resources to communicate with her attorney regarding the terms of her resignation from Loving Care, she proceeded with knowledge that such computer use and communications would not be private or personal to her. Plaintiff took a risk of disclosure of her communications and a risk of waiving the privacy she expected by way of the method she chose to communicate with her attorney. Communication in this format was voluntary on plaintiff’s part. It was chosen over other methods of communication that would not pose the risk of view that plaintiff allowed the employer to have when she used its server and technology. This constitutes a waiver of the attorney client privilege .