Ever quickly peek at your web-based personal e-mail account while still at the office?  Yes, many of us do, too (and we’d be willing to bet that certain Justices on the New Jersey Supreme Court may, as well). 

On March 30, 2010, in Stengart v. Loving Care Agency, Inc., the New Jersey Supreme Court held that an employee could “reasonably expect that e-mail communications with her attorney through her personal account would remain private, and that sending and receiving them via a company laptop did not eliminate the attorney-client privilege that protected them.” 

The New Jersey Supreme Court has a long history of affording New Jersey citizens broader privacy protection rights than those offered by the federal government.  For example, the New Jersey Supreme Court has held that citizens have a reasonable expectation of privacy in their bank account records, in their garbage, and in the personal information linked to their IP addresses.

Thus, when the question of whether an employee who uses a company computer to access e-mail communications between her and her attorney maintains the confidentiality of those communications, it was no surprise that the Court held that the act of an employee who accesses her attorney-client communications via a company laptop does not destroy the privilege. 

But the Court did unleash at least one surprise by announcing that even a “bulletproof” company policy on workplace computer use that claims the employer could read an employee’s attorney-client communications would not be enforceable if the employee accessed the communication through a personal, password-protected e-mail account.

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