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Stengart v. Loving Care Agency, Inc.

Supreme Court of New Jersey

December 2, 2009, Argued; March 30, 2010, Decided

A-16 September Term 2009


 [*307]  [**654]  Chief Justice RABNER delivered of the opinion of the Court.

In the past twenty years, businesses and private citizens alike have embraced the use of computers, electronic communication devices, the Internet, and e-mail. As those  [***13] and other forms of technology [**655]  evolve, the line separating business from personal activities can easily blur.

In the modern workplace, for example, occasional, personal use of the Internet is commonplace. Yet that simple act can raise complex issues about an employer's monitoring of the workplace and an employee's reasonable expectation of privacy.

This case presents novel questions about the extent to which an employee can expect privacy and confidentiality in personal e-mails with her attorney, which she accessed on a computer belonging to her employer. Marina Stengart used her company-issued laptop to exchange e-mails with her lawyer through her personal, password-protected, web-based e-mail account. She later filed an employment discrimination lawsuit against her employer, Loving Care Agency, Inc. (Loving Care), and others.

In anticipation of discovery, Loving Care hired a computer forensic expert to recover all files stored on the laptop including the e-mails, which had been automatically saved on the hard drive. Loving Care's attorneys reviewed the e-mails and used information culled from them in the course of discovery. In response, Stengart's lawyer demanded that communications  [***14] between him and Stengart, which he considered privileged, be identified and returned. Opposing counsel disclosed the documents but maintained that the company had the right to review them. Stengart then sought relief in court.

 [*308]  The trial court ruled that, in light of the company's written policy on electronic communications, Stengart waived the attorney-client privilege by sending e-mails on a company computer. The Appellate Division reversed and found that Loving Care's counsel had violated RPC 4.4(b) by reading and using the privileged documents.

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201 N.J. 300 *; 990 A.2d 650 **; 2010 N.J. LEXIS 241 ***; 108 Fair Empl. Prac. Cas. (BNA) 1558; 30 I.E.R. Cas. (BNA) 873; 93 Empl. Prac. Dec. (CCH) P43,853


Prior History:  [***1] On appeal from the Superior Court, Appellate Division, whose opinion is reported at 408 N.J. Super. 54, 973 A.2d 390 (2009).

Stengart v. Loving Care Agency, Inc., 408 N.J. Super. 54, 973 A.2d 390, 2009 N.J. Super. LEXIS 143 (App.Div., 2009)

Disposition:  The high court modified the judgment of the intermediate appellate court by removing the requirement that the case be remanded to the chancery court. It affirmed the judgment as modified and remanded the matter to the trial court to determine what, if any, sanctions should be imposed on the employer's counsel.


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Evidence, Privileges, Attorney-Client Privilege, Elements, Business & Corporate Compliance, Computer & Internet Law, Privacy & Security, Attorney-Client Privilege, Scope, Governments, Courts, Judicial Precedent, Waiver, Labor & Employment Law, Employee Privacy, Invasion of Privacy, Company Communications, Computer & Internet Law, Civil Actions, Legal Ethics, Professional Conduct, Electronic Communications, General Overview