On June 26, 2009, in Stengart v. Loving Care Agency, Inc., the New Jersey Superior Court - Appellate Division,  held that personal emails on a company computer may be considered confidential depending on the policy in effect and if the e-mails are subject to some other privilege...such as attorney client privilege.

Writing for the court, Judge Clarkson S. Fisher Jr. said that even if Loving Care Agency, Inc. had reserved a right to search Marina Stengart's company-owned laptop after her employment ended, messages exchanged through Stengart's personal e-mail account were protected by the attorney-client privilege.

Stengart's employer provided her with the use of a company-owned laptop and a work e-mail address during her employment. Before she left her job at Loving Care, Stengart communicated with her attorneys about an anticipated lawsuit against the company. The nursing director used the company laptop to communicate with lawyers at Budd Larner, but all of the messages were sent through her personal Yahoo internet e-mail account, which was password-protected.

After Stengart filed her lawsuit against Loving Care, the court said the company extracted and created a "forensic image" of the hard drive on Stengart's laptop. An attorney from the company's law firm, Sills Cummis & Gross, later acknowledged that in reviewing Stengart's Internet browsing history, he read "numerous" communications between Stengart and her attorneys. Loving Care did not disclose to Stengart's attorneys that the company had reviewed the e-mails, when the employer disclosed some of the messages in the course of answering discovery requests from Stengart's lawyers.

Loving care relied on their employee computer policy which stated that e-mails on company computers were considered "part of the company's business and client records," not "private or personal" to an employee. The policy provided that "[o]ccasional personal use is permitted."

However, the court said, even if the policy quoted by Loving Care was in effect, the document was ambiguous in referring to its application. The court said that allowing occasional personal e-mails could lead an individual to conclude that not every message was considered company property. The company also referred to its "e-mail system" in the policy, which the court said could be interpreted to refer only to a work-based system and not to a private e-mail account that could be accessed from a company computer.

The court said that there was much in the Loving Care policy that might suggest that personal e-mails were not company property, "and little to suggest that an employee would not retain an expectation of privacy in such emails."

Citing Thyroff v. Nationwide Mut. Ins. Co., 22 ILR (P&F) 234, 832 NYS 2d 873, 26 IER Cases (NY 2007), the court said that a computer in the setting at Loving Care was "little more than a file cabinet" for personal communications.

"Property rights are no less offended when an employer examines documents stored on a computer as when an employer rifles through a folder containing an employee's private papers or reaches in and examines the contents of an employee's pockets," the court said.

The appeals court said that "a breach of a company policy with regard to the use of its computers does not justify the company's claim of ownership to personal communications and information accessible therefrom or contained therein."

The court held "[a] policy imposed by an employer, purporting to transform all private communications into company property—merely because the company owned the computer used to make private communications or used to access such private information during work hours—furthers no legitimate business interest."

When an employee puts a business computer to personal use, the court said, the employer's interest is generally in the worker's distraction from the business of the company. An employer may monitor computer use and take disciplinary action if an employee engages in personal matters during the employee's working time. However, the court said, "that right to discipline or terminate . . . does not extend to the confiscation of the employee's personal communications."

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