Court of Appeals finds e-mails from employee to attorney not protected by privilege

Employees should think twice before hitting the send button. The California Court of Appeals recently held that e-mails sent via an employee’s work e-mail account are not protected by the attorney-client privilege.

In Holmes v. Petrovich Development Company, LLC, Gina Holmes sued her employer for sexual harassment, retaliation, wrongful termination and other related claims. Her complaint stemmed from allegedly offensive e-mails her employer sent her and his apparent unwillingness to accommodate her maternity leave.

Holmes used her work e-mail account to write to an attorney to discuss filing a lawsuit against her employer. Holmes and the attorney exchanged e-mails regarding her situation and the employer’s allegedly offensive e-mails. During the litigation, the issue arose whether the employer could rely on the e-mails between Holmes and her attorney, or whether they were protected by attorney-client privilege.

The employer’s company handbook contained various provisions that clearly spelled out the policy regarding an employee’s use of company technology, including e-mail accounts. The handbook stated that the company’s technological resources should be used only for company business and that employees were prohibited from sending or receiving personal e-mails. The handbook also warned that “employees who use the company’s technology resources to create or maintain personal information or messages have no right of privacy with respect to that information or message.”

Similarly, the “Internet and Intranet Usage” policy in the handbook specifically stated, “e-mail is not private communication, because others may be able to read or access the message. E-mail may best be regarded as a postcard rather than as a sealed letter.” Likewise, the handbook stated that the company may “inspect all files or messages … at any time for any reason at its discretion,” and that it would periodically monitor its technology resources for compliance with the company’s policies.
Holmes argued that the confidential nature of her communication with her attorney was not lost merely because she communicated with her attorney via the company e-mail account.

The Appellate Court disagreed, finding that “when Holmes e-mailed her attorney, she did not use her home computer to which some unknown persons involved in the delivery, facilitation or storage may have access. Had she done so, that would have been a privileged communication unless Holmes allowed others to have access to her e-mails and disclosed their content. Instead, she used defendants’ computer, after being expressly advised this was a means that was not private and was accessible by Paul Petrovich, the very person about who Holmes contacted her lawyer and whom Holmes sued. This is akin to consulting her attorney in one of defendants’ conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by Petrovich would be privileged.”

Thus, Holmes’ e-mails to her attorney did not constitute “confidential communication between client and lawyer” within the meaning of Evidence Code section 952.

Holmes relied on the U.S. Supreme Court ruling in Quon v. Arch Wireless Operating Co., Inc. (9th Cir. 2008) 529 F.3d 892, reversed by City of Ontario v. Quon (2010) [130 S.Ct 2619], for the proposition that she had a reasonable expectation of privacy, because the “operational reality” was that her employer did not access or audit employees’ computers. The Appellate Court disagreed on the grounds that the employer explicitly informed employees they did not have a right to privacy in personal e-mails sent by company computers and the company never conveyed a conflicting policy.

While the Holmes decision is significant to employers, the question of what constitutes privileged communications is not settled. Instead, courts will continue to carefully scrutinize the factual circumstances surrounding an employee’s claim of privacy in communications transmitted via work devices because, as noted by the U.S. Supreme Court in Quon, emerging technologies — and employer’s policies regarding those technologies — continue to shape the public’s expectations regarding privacy.
Thus, the factual underpinnings of each case can drastically alter a court’s decision. For example, in Stengart v. Loving Care Agency, Inc. (2010) 201 N.J. 300, 321-322, the New Jersey Supreme Court ruled that e-mails sent over a work-issued laptop were protected by the attorney-client privilege, because the employee used a private Web-based e-mail account.

Therefore, employers should vigilantly update their technology policies to clearly denote that company technology resources should be used only for company business, that the company can and will monitor its technology resources, and that employees who use the company’s technology resources have no right of privacy with respect to personal information or messages created with or stored on those resources.

Employers should also ensure that each employee is informed of these policies and that management does not make any oral representations or adopt any informal policies that are inconsistent with the written policy.

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