The Labor & Employment Law Blog Focusing on legal trends in data security, cloud computing, data privacy, and anything E

LAW ALERT: Employee Email Communications with Counsel Not Privileged According to Recent Third District Court of Appeals Decision

Posted in Employee Privacy Rights

In a decision that has already stirred substantial controversy, the California Court of Appeal recently held that an employee’s communications to her attorney are not privileged because they took place on her employer’s email system. Privileged communications cannot be discovered or used as evidence in a lawsuit. 

In Holmes v. Petrovich Development Co., the plaintiff used her employer’s email system to communicate with her attorney even though she had been: (1) told of the company’s policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal email; (2) warned that the company would monitor its computers for compliance with this company policy and, thus, might “inspect all files and messages … at any time;” and (3) explicitly advised that employee’s using company computers to create or maintain personal information or messages “have no right of privacy with respect to that information or message.” 

In analyzing the communications, the Court of Appeal held that the sending of otherwise confidential communications to one’s attorney on an employer’s email and computer system was akin to “consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person could expect that their discussion for complaints about her employer would be overheard by him.” The Court further held that the plaintiff “did not communicate in confidence by means which, so far as the client is aware, discloses the information to no third persons other than those who are present.” 

This decision has already elicited substantial controversy. Many critics have commented that the decision elevates boiler plate policy language above the realities of the workplace. This case may be petitioned to the California Supreme Court. Stay tuned!