Tuesday, June 30, 2009

Email Storage and the Attorney Client Privilege

Work place computers, privacy and the attorney client privilege are starting to create a legal stir, which can have an impact on the brokerage community.

FINRA rules and SEC regulations require brokerage firms to store and preserve all incoming and outgoing emails. The rule has obvious merit, and while implementation was initially an issue, it no longer is, as technology caught up with the rules. Every firm can capture and store emails today.

Underlying the rule is the premise that all information on a company computer belongs to the company. The rule did not have to concern itself with violation of individual privacy rights of the firm's employees; they have none when they use the company computer.

But a recent New Jersey case may change that. In a recent decision, the NJ Appellate Division ruled that employees do have a rights to the personal information on their computer, and more importantly, that the attorney-client privilege protects emails on an employees computer, even if the use of the computer was prohibited by work place rules.

New Jersey attorney Paul Kostro has an excellent analysis of the decision at his NJ Family Law Blog and the analysis applies in all employment situations - including the financial industry.

The case is Stengart v. Loving Care Agency Inc., App. Div. (Fisher, J.A.D.) (A-3506-08T1; APPROVED FOR PUBLICATION; Decided June 26, 2009):

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