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New Jersey Court Orders Return Of Emails Found On Employee Computer

Published by on September 14, 2009

 A New Jersey appellate court has ordered the return of emails between a former employee/plaintiff and her attorney that had been discovered on her workplace computer by a forensic investigator working for the employer’s attorney.  Ride the Lightning blog has the story here.   More after the break. The court’s conclusion and final order reads as […]

 A New Jersey appellate court has ordered the return of emails between a former employee/plaintiff and her attorney that had been discovered on her workplace computer by a forensic investigator working for the employer’s attorney.  Ride the Lightning blog has the story here.   More after the break.

The court’s conclusion and final order reads as follows: 

In conclusion, we reverse the order under review and remand for the entry of an order requiring the turnover of all emails exchanged by plaintiff and her attorney that are now in possession of either the company, the company’s attorneys, or their agents or employees. The order should also direct the deletion of all these emails from any computer hard drives upon which they were stored. We also remand for a hearing to determine whether Sills Cummis should be disqualified from further representing the company; that hearing is to be conducted by the Chancery judge in the related case. Discovery is stayed in this action pending a resolution of the disqualification issue.

The Virginia Lawyer magazine had an article on the topic here.  The Virginia Supreme Court briefly addressed the issue in Banks v. Mario Indus., which can be found here.  The relevant portion of that decision is as follows:

Pursuant to Mario’s employee handbook, Mario permitted employees to use their work computers for personal business.  However, Mario’s employee handbook provided that there was no expectation of privacy regarding Mario’s computers. Cook created the pre-resignation memorandum on a work computer located at Mario’s office. Cook printed the document from this computer, and Cook sent it to his attorney for the purposes of seeking legal advice. Cook then deleted the document from the computer. Mario’s forensic computer expert, however, retrieved the document from the computer’s hard drive. We held in Clagett v. Commonwealth, 252 Va. 79, 92, 472 S.E.2d 263, 270 (1996), that “the [attorney-client] privilege is waived where the communication takes place under circumstances such that persons outside the privilege can overhear what is said.” See Edwards, 235 Va. at 509, 370 S.E.2d at 301 (“The privilege may be expressly waived by the client, or a waiver may be implied from the client’s conduct.”). Therefore, we hold that the trial court did not err in admitting the pre-resignation memorandum into evidence.

These two decisions illustrate the risks on both sides of the equation in sending privileged emails from an employer’s computer and attempting to use those emails in subsequent litigation.

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