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accessing e-mails on a personal account

Loving Care argues that its employees have no expectation of privacy in their use of
company computers based on the company’s Policy. In its briefs before this Court, the
company also asserts that by accessing e-mails on a personal account through Loving
Care’s computer and server, Stengart either prevented any attorney-client privilege from
attaching or waived the privilege by voluntarily subjecting her e-mails to company
scrutiny. Finally, Loving Care maintains that its counsel did not violate RPC 4.4(b)
because the e-mails were left behind on Stengart’s company computer—not
“inadvertently sent,” as per the Rule—and the Firm acted in the good faith belief that
any privilege had been waived.
Stengart argues that she intended the e-mails with her lawyer to be confidential and that
the Policy, even if it applied to her, failed to provide adequate warning that Loving Care
would save on a hard drive, or monitor the contents of, e-mails sent from a personal
account. Stengart also maintains that the communications with her lawyer were
privileged. When the Firm encountered the arguably protected e-mails, Stengart
contends it should have immediately returned them or sought judicial review as to
whether the attorney-client privilege applied.


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