A recent California Third Appellate District decision held that e-mails from an employee to her attorney about a potential lawsuit against the employer, sent on a company computer and via a company e-mail account, were not protected by the attorney-client privilege. In Holmes v. Petrovich Development Company, LLC, the Court concluded that Holmes should have had no expectation of privacy in her communications with her attorney because she had read and signed the company's handbook, which contained a clear policy concerning use of the company's computers and e-mail accounts. The policy provided that (1) company computers were to be used only for company business and that employees were prohibited from sending or receiving personal e-mail on company computers; (2) the company monitors its computers for compliance with the policy; and (3) employees using company computers for personal information or messages have no right of privacy with respect to such information or messages.
The Court distinguished the Supreme Court of New Jersey's notable decision in Stengart v. Loving Care Agency decided last year, observing that the employee in Stengart had used a web-based, password-protected e-mail account accessed from her employer's computer and that the use of such an account was not clearly covered by the Agency's communications policy. Holmes serves as an important reminder for employers to reexamine and clarify electronic communications policies.