Employee Emails From Company Computers Are Not Privileged

A California appellate court in Holmes v. Petrovich ruled that an employee’s emails sent to her attorney did not constitute “confidential communications between client and lawyer” when sent on a company computer.

A clear and comprehensive computer policy is an essential component of any employee handbook.  Indeed, on January 13, 2011, a California appellate court in Homes v. Petrovich ruled that when such a policy is in place, an employee who uses a company computer to email her attorney waives the attorney-client privilege.

The case was brought by Gina Holmes who was hired as an executive assistant to Paul Petrovich in June 2004.  In July 2004, Holmes informed Petrovich that she was pregnant.  Petrovich was upset by the news, and the two exchanged a series of emails in which Petrovich told Holmes he felt taken advantage of and complained that her absence while on maternity leave would pose a hardship for him.  As a result, Holmes emailed an attorney from her work email account regarding possible legal action.  Holmes subsequently ended her employment claiming that Petrovich’s feelings regarding her pregnancy left her no choice in the matter.

Soon after, Holmes filed a suit against Petrovich alleging sexual harassment, retaliation, wrongful termination, violation of privacy rights, and intention infliction of emotional distress.     At trial, the jury was shown several emails between Holmes and her attorney.  While Holmes argued the emails should be protected by the attorney-client privilege, the trial court found the emails were not protected by this privilege because they were not private.  The court’s reasoning was based on the company’s detailed computer usage policy which stated that:

• Company technology resources were to be used only for company business;
• Employees using company computers to create or maintain personal information or messages “have no right of privacy with respect to that information or message”; and
• The company would periodically monitor technology resources for compliance with its policy and could thus “inspect all files and messages . . . at any time.”

On appeal, the court affirmed this decision.  Generally, communications between a client and her attorney are privileged.   However, no privilege exists if a client does not communicate the information 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 in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted.

In this situation, the court found that the emails did not constitute confidential communication because Holmes knew of the company policy which forbade personal computer use, she was warned the company might monitor its computers, and she was told she had no privacy right in messages created on company computers.  Thus, the court explained, by using a company computer to email her attorney with knowledge of the company’s computer policy, Holmes knowingly disclosed the information in her communications to the company.  Because the emails were therefore not confidential communications, the court held that they could not be protected by the attorney-client privilege.

This decision underscores the need for employers to be very specific and unambiguous when drafting computer usage policies.  All employers must decide not only whether to allow personal use of company computers but also whether to allow personal use of company email systems and web-based email solutions; this decision should be clearly stated.  Additionally, if employers intend to monitor employee use of company computers or email, such language should be included in the policy, and employers may also wish to include a warning that messages created on company computers are not private.

For more information, please contact a member of the firm’s employment law group at http://www.rimonlaw.com/practice/employment-law.