April 2010, No. 1

Can An Employer Review An Employee's E-mails To Her Attorney That Were Sent On A Company Computer, But On A Private E-mail Account? For those of you said NO, you are right. See Stengart v. Loving Care Agency Inc., 2010 N.J. LEXIS 241 (2010). In Stengart, the plaintiff was using her company-issued laptop to communicate with her attorney via a private email account. The communications involved the plaintiff's potential discrimination lawsuit against the defendant. Prior to discovery being exchanged, the defendant had a computer forensic expert recover all the emails from the laptop, and the defendant's attorney reviewed the e-mails and used them in discovery. After the defendant rejected the plaintiff's attorney's request that all e-mails between him and the plaintiff be returned, the plaintiff filed a motion, which the trial court denied based on a waiver of the attorney-client privilege. The Appellate Division reversed, and the Supreme Court affirmed the Appellate Division finding that the plaintiff could reasonably expect that the e-mails would remain private. The Supreme Court you are wrong! See Reyes v. Egner, 2010 N.J. LEXIS 385 (2010). For those of you who do not recall, in Hopkins, the Supremes held that a real estate agent who conducted an open house had a duty of care to invitees. Namely, real estate agents in such situations must warn invitees of reasonably discoverable dangerous conditions. In Reyes, the Supremes were divided 3-3 on whether to extend the Hopkins duty to a real estate agent who rented a summer property to the plaintiff's daughter. The plaintiff was injured when he stepped out of a sliding glass door and did not see the seven inch drop to an intermediate step. Guess who voted to affirm (J. Hoens was nota part of the decision). For those who said the Chief Justice, Justice Rivera-Soto, and Justice LaVecchia, bingo! The Supremes have become divided on tort liability. The affirming three Justices consistently view tort theories narrowly where as Justices Long, Wallace, and Albin tend to find that torts should be considered broadly. In summary, the affirming three concluded that the plaintiff's nine-day stay afforded them ample time to inspect and discover dangerous concluded that the defendant's policy permitting it to review matters on its systems did not clearly include e-mails on a private account. Importantly, the Supreme Court ruled that the defendant's attorney's failure to notify plaintiff's counsel promptly about the emails violated RPC 4.4(b), which deals with returning documents that are inadvertently produced. The Supremes hit the nail on the head with this opinion – communications between an attorney and a client are privileged especially when they are done through a private e-mail account. Practice Tip: we need to be very careful when reviewing documents from a party's computer. If there is any question as to whether the documents are privileged or were inadvertently sent, stop reading them, contact your adversary, and determine whether you may keep and read them.

Does A Real Estate Agent Have A Duty To Warn Short-Term Renters Of Reasonably Discoverable Dangerous Conditions? For those of you who said yes based on Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993), conditions. The dissenting three asserted that the "ample opportunity" to inspect by the plaintiff was irrelevant to the duty to warn of the defendant. The dissenters are correct that the majority's conclusion is an issue of comparative negligence for the jury, and not one of a duty. Here, the real estate agent is in the best position to discover dangerous conditions, and a duty to warn would reduce, not increase, lawsuits. The issue of inspection should be raised as an affirmative defense. As an aside, we are not fans of 3-3 opinions on important issues.

Contributions. If you have an interesting case, rule interpretation, ethics issue, or civil related story, please contact me at (201) 918-3560, (f) (201) 845-5973, or e-mail mjepstein@theepsteinlawfirm.com.

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