In a recent California Court of Appeals decision, Holmes v Petrovich, the court held that emails sent by an employee to her attorney on a work computer were not attorney-client privileged because they were sent from a work email account.
Gina Holmes was hired as an executive assistant to Paul Petrovich. Shortly after Holmes was hired, she informed Petrovich that she was pregnant. Petrovich became upset at this disclosure, and exchanged a series of emails with Holmes stating that, while he did not intend to violate any laws, he felt taken advantage of. In response, Holmes emailed an attorney from her work email account indicating that she felt she was working in a hostile environment. Holmes eventually emailed Petrovich to inform him that his feelings regarding her pregnancy left her with no alternative but to end her employment.
Thereafter, Holmes filed a suit for sexual harassment, retaliation, wrongful termination, violation of privacy rights, and intentional infliction of emotional distress. At trial the jury was shown several emails between Holmes and her attorney. Holmes argued that these emails were attorney-client privileged. The trial court, however, ruled that Holmes's emails, sent on a company computer, were not protected by the attorney-client privilege because they were not private. This conclusion was supported by the language of the company's detailed computer usage policy, which stated in unambiguous terms that:
- Company technology resources should be used only for company business and employees are prohibited from sending or receiving personal emails;
- Employees have no right to privacy for personal information created on company computers;
- Email is not private communication;
- The Company may inspect all files or messages at any time; and
The Company would periodically monitor technology resources for compliance with Company policy. On appeal, the court affirmed the decision of the trial court stating that the communications in question did not constitute "confidential communications between client and lawyer" because Holmes knew of the company policy regarding no personal use, she had been warned that the company would monitor its computers for compliance with company policy, and she was warned that she had no right of privacy as to message created on company computers. The court described the communications as "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 that their discussion of her complaints about her employer would be overheard by him."
This decision is another great example of the need for employers to be very specific when drafting computer usage policies. Employers must decide whether to allow personal use of not only company computers, but also company email systems and web-based email solutions. If employers intend to monitor employee use of company computers and email, language should be included noting that the company may monitor computers and/or email and language that messages created on company computers are not private.