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Saturday, April 3, 2010

Privacy Rights Upheld in Workplace, But Privacy Still At Risk

This past week the New Jersey Supreme Court (the state's highest court) held that an employee had a right to privacy and enjoyed the attorney-client privilege as to e-mails she sent to her attorney from her workplace computer.   The case is Stengart v. Loving Care Agency, Inc..

I cannot help but think that the underlying conduct shows a dearth of common sense.   The employee was contemplating suing her employer, hired the attorney for the purpose of that litigation, and actually followed through with a lawsuit.   This means that the employee should have known that her employer could have accessed or monitored her computer and any e-mails she sent (even if through a personal e-mail account).  

The questions of whether the employee should have known, or whether the employer should have been able to monitor that e-mail in the first place, are irrelevant to the common sense fact that the employee left herself vulnerable to the practical, strategic error of allowing her adversary the opportunity to peek into and learn about her strategy, approach and arguments. 

Some litigation is won -- or lost -- well before the case ever hits the courtroom.   Strategic errors can make or break a case.  A smart investigative lawyer can piece together a lot of disparate facts, which in isolation may make no sense or seem entirely useless, to uncover a pattern.   In other instances, that same lawyer may be able to use reverse engineering to protect a client.

Employers will be able to snoop in on employees, through various means -- legal or otherwise.   True protection of privacy requires that people never assume that their potential overseers or adversaries cannot or will not take a particular course of action.   I fear this case will give a false sense of security to many innocent and perhaps overly trusting people.  

There is a difference between being able to do something (whether you can do it) and whether you should do it.   As I have said before, if you want to discover your best protection against your privacy being invaded, just look in the mirror. 


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