• Employee's E-mail to Attorney Not Privileged Where Sent by Employer's Computer, California Court Rules
  • January 24, 2011 | Author: Mark S. Askanas
  • Law Firm: Jackson Lewis LLP - San Francisco Office
  • If an employee, using her employer’s computer and e-mail account, sends an e-mail to her attorney about possible claims against her employer, is that e-mail protected by the attorney-client privilege so that it may not be used as evidence against her?  The California Court of Appeal has answered, “No.” Holmes v. Petrovich Development Co., LLC, No. C059133 (Cal. Ct. App. Jan. 13, 2011).
     
    Affirming a judgment in favor of the employer on claims of invasion of privacy and intentional infliction of emotional distress, the Court held that, because the employee had no reasonable expectation of privacy in communications made using her employer’s computers, the attorney-client privilege did not protect her e-mails from being offered into evidence.

    The Facts
    Gina Holmes was an executive assistant to Paul Petrovich, the owner of Petrovich Development Company.  When hired, Holmes received a copy of the employee handbook, which included policies concerning the use of the Company’s computers and e-mail systems.  It stated:

    • that those systems were for business purposes only,
    • that employees were prohibited from sending or receiving personal e-mails, and
    • employees had “no right of privacy” in any e-mail messages made using the Company’s computers. 

    The Company also reserved the right to “inspect all files or messages . . . at any time for any reason.”

    Shortly after she began work, Holmes told Petrovich that she was pregnant and the two began a series of e-mail communications regarding maternity leave.  Because Petrovich was concerned that Holmes would resign, at one point he forwarded their e-mails to the Company’s in-house counsel and human resources managers.

    After several additional e-mails, Petrovich and Holmes appeared to have resolved the maternity leave issue, and, in e-mail dated August 10, 2004, Holmes suggested that they “move forward in a positive direction.”  Later that day, during an obstetrics appointment, Holmes told her doctor that she felt that she was being harassed at work due to her pregnancy. He suggested that she contact an attorney.  When Holmes returned to work from her appointment, using the Company’s computer and e-mail account, she e-mailed her attorney, Joanna Mendoza, and asked for a referral to an attorney specializing in labor law.  Holmes told Mendoza, “[N]ow that I am officially working in a hostile environment, I feel I need to find out what rights, if any, and what options I have.”
     
    Holmes subsequently resigned and sued Petrovich and the Company (collectively, “defendants”) for harassment, retaliation, wrongful termination, invasion of privacy, and intentional infliction of emotional distress.  The defendants moved for summary judgment. The trial court granted the motion as to Holmes’s harassment, retaliation, and wrongful termination claims, but allowed the invasion of privacy and intentional infliction of emotional distress claims to proceed to trial.

    E-mails as Evidence
    Holmes sought to prevent the defendants from introducing into evidence the e-mails to her attorney, arguing they were privileged attorney-client communications.  The trial court denied the motion, ruling the e-mails were not privileged because they were not private.

    The defendants offered the e-mails into evidence at trial to show that Holmes did not suffer severe emotional distress, but was only frustrated and annoyed, and had filed the action at the urging of her attorney.
     
    Judgment was entered in favor of the defendants.  Holmes appealed, arguing, among other things, that the trial court erred in allowing her e-mails to be introduced into evidence.

    The California appellate court rejected her argument based on Sections 912 and 952 of the California Evidence Code.  Under the law, “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons, other than those who are present to further the interest of the client” are privileged.
     
    Section 917 of the California Evidence Code further provides that a “communication . . . does not lose its privileged character for the sole reason that it is communicated by electronic means.”

    Although the Court recognized that a communication does not lose its privileged nature simply because it is transmitted electronically, it did not follow that the e-mails were privileged, given that the computer and e-mail account Holmes used belonged to the defendants; she was informed that e-mails were not private and could be monitored; and she was aware of these policies.  According to the Court, the use of her employer’s computer and e-mail account to communicate with her attorney was “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.”

    The Court found that, under Section 952, “so far as [Holmes was] aware,” the company computer was not a means by which to communicate in confidence any information to her attorney.  In so doing, Holmes “knowingly disclosed this information to a third party, Petrovich, who certainly was not involved in furthering [her] interests in her consultation with her attorney . . . because Petrovich was the party she eventually sued.”  Accordingly, the Court concluded that the e-mails were not privileged and affirmed the trial court’s ruling.

    Implications for Employers
    Although this California court found that the employee’s e-mails were not privileged, the New Jersey Supreme Court reached the opposite conclusion. In Stengart v. Loving Care Agency, Inc. et al., 201 N.J. 300, 990 A.2d 650 (2010), it held that e-mail messages between an employee and her attorney sent via the employee’s personal, password-protected e-mail account, but using her employer’s computer, were protected by the attorney-client privilege.  The New Jersey Court also ruled that the company’s electronic communications policy did not transform the employee’s private e-mails with her attorney into the company’s property or otherwise waive the attorney-client privilege.
     
    Thus, whether the attorney-client privilege has been waived will turn, not only on the law of the jurisdiction, but also on the facts.  In making such a determination, courts likely will examine the following issues:

    (1) whether the communications were sent using a personal e-mail account or a company-provided e-mail account;
    (2) whether the communications were sent using the employer’s computers or communication devices;
    (3) whether the employer had a clear computer, e-mail, and Internet usage policy stating that employees have no right of privacy in any communications made using the employer’s accounts or systems;
    (4) whether the employer notified employees that their communications would be monitored; and
    (5) whether the employer regularly monitored employees’ communications.

    It is important for employers to maintain clear computer, e-mail, and Internet usage policies notifying employees that they have no right of privacy in any communications made using the employer’s systems; that the employer has the right to access and monitor all such communications; and that the systems are to be used for business purposes.

    Nevertheless, employers should tread carefully if they uncover potentially privileged communications.  Do not presume that the attorney-client privilege is waived in any given situation.  Indeed, had Holmes used her employer’s computer to access her private e-mail account, the decision may have turned out differently, in light of the strong public policies supporting the attorney-client privilege.