In August, we wrote about the ruling of a New Jersey appellate court in Stengart v. Loving Care Agency, Inc., in which the court took a very narrow view of the ability of employers to monitor the e-mail communications of employees over its computer networks. In that case, which is now on appeal to the New Jersey Supreme Court, the appellate court held that an employee did not waive her attorney-client privilege with respect to e-mails that she sent to her attorney while using the employer’s computer network, but via her personal Web mail account, despite the existence of a broadly worded communications policy giving the employer the right to access all communications occurring over its network. The appellate court court ruled that even if the employer’s policy applied to the employee (she disputed its applicability), the employer’s right to access to such communications pursuant to that policy was limited by the employer’s "legitimate business interests." Such interests did not extend, the court concluded, to the employee’s communications with her attorney.

In contrast to the New Jersey court’s narrow view of the applicability of such policies, the district court judge in Alamar Ranch, LLC v. County of Boise, 2009 U.S. Dist. LEXIS 101866 (D. Idaho Nov. 2, 2009), held that knowledge of employer monitoring of employee communications over its network could be imputed, not only to the employee but to the employee’s attorney as well. As a result, the court held, the attorney-client privilege had been waived with respect to messages sent by the employee to the attorney using her employer-assigned e-mail account, and to messages sent to the employee at her employer e-mail address by the attorney.

With respect to the employee’s knowledge of such monitoring, the court commented that it was “unreasonable for any employee in this technological age — and particularly an employee [who received actual notice of such monitoring] — to believe that her e-mails, sent directly from her company’s e-mail address over its computers, would not be stored by the company and made available for retrieval.” The court further found that knowledge of such monitoring could be imputed to the employee’s attorney with respect to messages that he sent to the employee because the e-mail address to which he sent the messages “clearly” put him on notice that he was sending to the employee’s work address. The court commented that workplace e-mail monitoring “is so ubiquitous that [the attorney] should have been aware that the [employer] would be monitoring, accessing, and retrieving e-mails sent to that address.”

Interestingly, despite having concluded that workplace monitoring of e-mail communications is so ubiquituous as to put the employee and her attorney on notice that it was occurring, the court found that communications sent to the employee by other clients of the attorney in the multi-party litigation did retain their privileged status, because there was no evidence that the other clients knew or should have known of the workplace monitoring. In contrast to the employee and the parties’ attorney, the court commented, “laypersons are simply not on ‘high-alert’ for such things as attorneys must be.”
The court in Alamar Ranch made clear that it was not ruling on whether the employee’s communications would have been protected had she sent them while using the employer’s computer network, but via a Web mail account, and cited Stengart v. Loving Care as an example of such a case. But note that a close reading of the opinion in Stengart v Loving Care indicates that the ruling in that case was not limited to employee communications by Web mail.