In the past year, numerous articles have been written advising companies and employment lawyers about the changes that should be made to company policies in the wake of the New Jersey Supreme Court’s decision in Stengart v. Loving Care Agency, Inc., 201 N.J. 300 (2010). In that case, the Court found that that an employee had an expectation of privacy and did not waive privilege by using her employer’s laptop to exchange e-mails with her attorney through a personal, password-protected e-mail account, especially when the company’s Internet and e-mail usage policies were ambiguous.
However, the Stengart decision left open the important questions of whether those same communications would have been discoverable had the employee used the company’s e-mail account instead of her personal, password-protected Yahoo! account. That uncertainty presents a potential landmine for litigation counsel reviewing documents during discovery.
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