Another important appellate decision regarding the privacy of e-mails

In Holmes v. Petrovich Development Co., LLC (2011) 2011 Cal.App. Lexis 33, the plaintiff sued her employer for claims pertaining to her employment.  The defendant employer was successful on a motion for summary adjudication on claims relating to hostile work environment, sexual harassment, retaliation, and constructive discharge.  A jury then returned a verdict for the defendant on the remaining claims of violation of plaintiff's right to privacy and intentional infliction of emotional distress.

On appeal, the reviewing court held that summary adjudication was proper on the hostile work environment claim.  What I thought was particularly noteworthy about this case was the finding that the employee's e-mails to her lawyer were not protected by the attorney-client privilege set forth in Evidence Code section 954 because they were not confidential communications as defined in Evidence Code section 952.  In reaching its decision, the court relied on the fact that the employee used her employer's computer after being told that her e-mails were not private and were accessible by the employer.  The company's policy was that the computers were to be used for the employer's business and employees were prohibited from  sending or receiving of personal e-mails.  The employer warned that it would monitor its computers to confirm compliance with this policy, inspecting files and messages at any time, and that employees had no right of privacy with respect to the information or messages contained in those e-mails.

While the court explained that attorney-client communications do not lose their privileged character just because electronic means are used or because persons involved in the "delivery, facilitation, or storage of electronic communication" may have access to the communication.  (Opn., pg. 3.)  The court continued, "However, the e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer's conference room, in a loud voice, with the door open, so that any reasonable person would expect their discussion of her complaints about her employer would be overheard by him."  (Ibid.) By using the company's computer to send e-mails to her lawyer, knowing that such e-mails violated company policy and might be monitored by her employer, the plaintiff did not communicate in confidence or by means that would not disclose information to a third party.

The plaintiff argued that she believed her personal e-mails would be private because she used a private password to access the computer and she deleted the e-mails after they were sent.  The court found plaintiff's belief in the privacy of these e-mails was unreasonable because she had been warned of company policy and  she should have no expectation of privacy as to personal e-mails.  Indeed, the employer indicated it would be monitoring communications.  In addition, both the company's controller and IT person had administrative passwords that could access employees' private e-mails.  Thus, the plaintiff had no reasonable expectation of privacy in her e-mail communications sent from her employer's computer and the company computer was not a means by which plaintiff could communicate in confidence with her attorney.

There is probably little doubt that employees frequently use their employer's telephones and computers to conduct personal business.  Given the reality of our reliance on constant text messaging and e-mails - even to the point of rewiring out brains! - it is hard to imagine that most of us can wait until a coffee break or lunch period to handle personal matters.  But we should understand that using a company's computer and time, especially when specifically advised that such personal contacts are prohibited, poses risks.

For attorneys, we have to be especially careful.  Clients often communicate with us through e-mails, but how often do we inquire as to the privacy of such e-mails?  I believe it would be a good idea to learn about how the client is sending e-mails to you and if any third person has access to such communications.  You might also consider getting the client's consent in writing in your retainer agreement to send e-mails containing confidential communications and documents by electronic means.