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Is Your Email Really Private

By Evan L. Goldman

Most of us believe that the email conversations we have with friends, business associates and others are private. But are they? The Appellate Division in the case of Stengart v. Loving Care Agency 408 N.J. Super 54 (App. Div. 2009) has recently ruled that emails between a client and her attorney are "protected" communication even when sent from the client's office computer. However, the Supreme Court of New Jersey agreed to accept this case and recently heard oral arguments. The Court is expected to rule shortly.

The plaintiff in this case, Marina Stengart, was an employee of the Loving Care Agency. Shortly before she was discharged, she sent an email to her attorney (the client had expected to be fired and had retained an attorney for this purpose) from her office computer. Fearing that the office computer was not "safe" or that her email might be intercepted, she logged on her separate personal password protected email account from her office computer to send the email to her attorney.

Shortly thereafter she was fired and a law suit ensued. During the discovery phase of the litigation, her employer took a computer image of her office computer and discovered the private email to her attorney. The defense attorney disclosed this to plaintiff's counsel, who then filed a motion with the trial court to bar the use of the email claiming that it was private. The trial court ruled that once the employee used the employer's computer, it was no longer private. The employee appealed the trial court decision. The Appellate Division of the State of New Jersey overturned the trial court stating that the fact that the employee had used her own password protected account indicated that it was her expectation that her email communication was private and therefore should be protected by the attorney-client privilege. The Court recognized the importance of the attorney-client privilege and focused on this issue and the fact that the client had utilized her own password protected email account. The employer asked the Supreme Court to accept the case, which they did.

During recent oral arguments, the Supreme Court appeared to focus on the expectation of privacy once the employee used her personal, password protected email account. The questions to defense counsel centered on why the employee would have used her own password protected email account if she did not believe that the email would be private.

It remains unclear as to how the New Jersey Supreme Court will decide the case. The Court must balance the rights of the client and her attorney against the rights of the employer. At this point, one thing is clear: If you want an email communication to be private, it's best to send it from your home computer rather than the office computer, even if you use your own password protected email account.

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