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June 2, 2010

MySpace or other social networking sites as a new source of impeaching evidence

MySpace or other social networking sites as a new source of impeaching evidence
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Goldman's Observations ran an interesting story about a lawyer using MySpace postings to impeach a witness. The case is Embry v. State, 2010 WL 768755 (Ind. App. Ct. March 8, 2010). This is just another reason why individuals should be very careful about what they put in cyberspace.

On a related issue, Professor Rubinstein reports on a case involving E-maila sent from the employee's Yahoo account on company computer. Is such E-mail protected by attorney-client privilege?

In other words, Professor Rubinstein asks, “Do employees have a reasonable expectation of privacy on an employer's computer?”

He then comments: “We know that the answer is generally no. What if the employee sends an email from his private Yahoo account to his lawyer on that computer? Can the employer read it?

That was the subject of a very interesting N.J. Supreme Court decision which held that the answer is ‘No’."

An ABA Journal Blog about this case states:

The New Jersey Supreme Court has ruled that attorney-client privilege protects e-mail discussing a possible employment lawsuit that was transmitted on the corporate laptop of the would-be plaintiff.

Sending and receiving personal, password-protected e-mails on a corporate laptop did not eliminate the attorney-client privilege that protected them, the court ruled in its opinion (PDF).

The Legal Profession Blog, the New Jersey Star Ledger and the New Jersey Law Journal covered the ruling.

The opinion could influence workplace privacy rules across the country, lawyers told the Star Ledger.

Lawyers from the Newark law firm of Sills Cummis & Gross in Newark had read the e-mail after the employee, Marina Stengart, quit her job as a nursing manager, filed suit and turned in her computer. Sills Cummis represented Stengart’s employer, a home health care company called the Loving Care Agency. The law firm found the e-mails during a forensic analysis of the laptop.

Law review commentary is needed with respect to this important issue. A copy of this important decision is available here.

Mitchell H. Rubinstein [with a Hat Tip to Kevin Harren, Esq.]

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Text prepared by Harvey Randall except as otherwise noted. Randall, former Principal Attorney, New York State Department of Civil Service, also served as Director of Personnel for the State University System; as Director of Research, Governor’s Office of Employee Relations; and as Staff Judge Advocate General, New York Guard. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School.