Analysis of Former Employee’s Laptop Can Raise Privilege Issues

In Stengart v. Loving Care Agency, Inc. et al., --- A.2d ----, 2009 WL 1811064 (App. Div. 2009 Docket No. A-3506-08T1, published June 26, 2009), a three judge panel of the New Jersey Appellate Division ruled, despite a written policy to the contrary, an employee had a “reasonable expectation of privacy” in e-mails with her attorney via an employer-owned laptop.  The Court remanded the case for a determination of appropriate sanctions, including possible disqualification of the employer's counsel.  The policy in question was ambiguous in part because it contained an “occasional use exception”. The fact that the employee used a web email account opposed the employers email system was significant: These communications pertained to plaintiff's anticipated suit against the company, and were sent from plaintiff's work-issued laptop but through her personal, web-based, password-protected Yahoo email account. Stengart at 2. Moreover, the court noted:

The references to the use or misuse of this "e-mail system" in paragraph 4 could reasonably be interpreted to refer only to the company's work-based system and not to an employee's personal private email account accessed via the company's computer.

Stengart at 10. For purposes of the decision the Court assumed that the Defendant employer had a well-publicized electronic communications policy that made all aware that the employer's computer and system (including those allowing for Internet access) were all company property, to be used for company business, and that the company believed that there was no reasonable expectation of privacy in any communications that an employee had through such equipment or system because the communications were, as announced in the policy, subject to monitoring, were considered the property of the company, and were embedded within the company's physical property. There were a couple factual points not clarified in the opinion.  First, were the emails sent from the employer owned laptop from the employee’s home using the employee’s email or were the emails sent from work?  Second, how did the employer gain access to the cached email data from browser history – and – whether the procedure involved bypass yahoo security controls?  There are three files created by when using Yahoo! Email: ShowLetter, ShowFolder, or Compose. Browsers will not work because there is Javascript code at the start of each file, which checks if the user who is accessing this page has been logged in to Yahoo! Mail or not.  If not, it redirects the individual to the login page.  This can be bypassed by opening the .html file in a text editor, and deleting references to “log-in”. For example, the following lines:

<noscript> <META HTTP-EQUIV=Refresh CONTENT="0; URL=/ym/login?nojs=1"> </noscript>