As a general rule, there isn’t much worth writing about with regard to New Jersey. However, on Tuesday, the State’s highest court came down with holding that was a win for plaintiffs and ethics.
Marina Stengart was an Executive Director of Nursing at Loving Care Agency, Inc., a health care provider. She was issued a company lap top, and signed an employee handbook which stated that personal use was permitted on a limited basis.
While on the company laptop, she e-mailed her attorney through a private, password encrypted e-mail on Yahoo. The attorney replied many times. The subject of the e-mail conversations was an anticipated action against her employer for discrimination on several grounds.
She left the company, and filed suit. Anticipating discovery, the employer hired forensic experts to scrape all the material off the hard drive of Stengart’s former lap top. She moved to suppress the information, on the grounds she had a reasonable expectation of privacy, and that it was subject to attorney client privilege. The trial court held for the employer, and the appeals court reversed, holding for Stengart, on the grounds that she had a reasonable expectation of privacy.
The employer appealed to the New Jersey Supreme Court. The matter was a case of first impression for Jersey, so the Court relied on a Massachusetts case, National Economic Research Associates v. Evans, as at he controlling case. Evans had nearly identical facts, and the Court held for the employee. Here, the Court concluded not only that the employee had a reasonable expectation of privacy, but that the Counsel for the employer violated Rule 4.4 of the Model Rules, by failing to inform the employee that they had privileged information upon immediate receipt of the information. The Supreme Court of New Jersey, by a 7-0 vote, affirmed the judgment, and remanded it to the trial court to determine what, if any, sanctions were appropriate.
Well done, New Jersey.
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