Distinguishing Quon and Stengart

A few weeks ago, I posted about Stengart v. Loving Care Agency, a case where the New Jersey Supreme Court held that employees can send emails to their attorneys on company computers without waiving attorney-client privilege. About a week later, the Supreme Court of the United States heard oral arguments in City of Ontario v. Quon, a case where, from the oral arguments, it looks like the Supreme Court will hold that an employer can read messages sent to an employee on a company pager. The question is, will any meaningful part of the employee protections from Stengart survive the probable employer friendly ruling of Quon?

After re-reading the decision in Stengart, and the oral arguments in Quon, I think that, when the ruling in Quon is handed down, it will likely be distinguishable from Stengart, leaving the employee protections in that case fully intact. The critical question for whether Quon will undermine Stengart is whether Quon will state that employers can abrogate an employee's reasonable expectation of privacy with a policy stating that all communications made using company equipment are non-confidential, and will be monitored. Stengart, as I mentioned in my last post, stated that, even if such a policy did exist, it would be unenforceable (at least with respect to emails which would otherwise be covered by the attorney-client privilege). By contrast, the oral arguments in Quon indicated that the US Supreme Court was at least open to the possibility that employers would use a "no-privacy policy" to eliminate whatever privacy expectations their employees would otherwise have. If the Supreme Court does decide Quon on the theory that such a "no-privacy policy" could eliminate the employee's expectation of privacy, it would cut the heart out of the Stengart decision.

However, while I still think it is likely that the Supreme Court will issue an employer friendly ruling in Quon, it doesn't necessarily have to do so based on the theory that a "no-privacy policy" can eliminate an expectation of privacy. As mentioned by Justice Kennedy (see page 12 of the transcript), the city had two arguments it could prevail on:

One, that it's -- there is no reasonable expectation of privacy [this would be the no-privacy policy argument]; [two]even if there were, that this was a reasonable search [meaning that the no-privacy policy wouldn't have to be effective for the city to win].

Further, Justice Scalia seemed to indicate that the second of those rationales would be an easier way for the Court to find in favor the city (see page 24 of the transcript). As a result, when the decision in Quon does come out, I think there is a good chance that it will be possible to distinguish that decision from Stengart by pointing out that Quon was (once the hypothetical decision comes out) was decided based on the reasonableness of the employer's actions, rather than based on the effectiveness of the employer's no-privacy policy.

Of course, it's also possible that the Supreme Court will hold that the no-privacy policy in Quon eliminated the employee's reasonable expectation of privacy. If that happens, there are still a number of grounds on which the two cases can likely be distinguished. For example, Stengart was decided based on New Jersey common law, while Quon was a fourth amendment case. However, I find that distinction analytically unsatisfying, since Stengart made clear that the analysis under the common law was similar to that under the fourth amendment, and didn't turn on any distinction between them. It's also possible that the cases could be distinguished based on the fact that the communications in Quon were personal messages, while those in Stengart were messages from an attorney about a case. While this is slightly more satisfying, since courts have traditionally been highly protective of the privilege, it seems a bit odd that a reasonable expectation of privacy would turn on the content of a message.

In any case, it's possible that all this prognostication is beside the point. The Supreme Court hasn't ruled in City of Ontario v. Quon, and, until it does, there's no real way to know what impact it will have on Stengart. However, given the above, even once it does, I think there's a good chance that it'll leave the employee protections of Stengart mostly intact.