January 19, 2011
California Court Says Company Emails Can Waive Attorney-Client Privilege
There is a case out of the California Appellate Court for the Third District (Sacramento) that held that and employee's communication with a lawyer would not be covered by attorney-client privilege if the communication were made on a company computer and email account. It doesn't help if the employee is suing the employer for multiple counts of discrimination and invasion of privacy. The case is Holmes v, Petrovich Development Company (C059133).
Gina Holmes became pregnant while working for Petrovich, considered a small business, and communicated by email with the owner of the company, Paul Petrovich, about her condition and how it would impact her ability to work. Their email exchanges were blunt, though Petrovich expressed a desire to work things out for maternity leave and other related circumstances. Petrovich forwarded some of the unedited emails to individuals within the company, such as those dealing with human resources issues, to move forward with that accommodation. These emails contained highly personal information disclosed by Holmes to Petrovich. Forwarding them on became part of the invasion of privacy claim.
The trial court granted summary judgment to the defendant for some of the claims and the jury held for the defendant on others. Holmes did not prevail on any counts. One of her issues on appeal involved emails exchanged between her and her attorney. Some of the contents of these were used in deposition questions and at trial. Holmes objected as these should be covered by attorney-client privilege as defined by the California Evidence Code.
Both the trial and appellate court examined the circumstances of these communications and concluded that the company policy about work email essentially waived that privilege. Holmes was told that the email system would be monitored and that there was no privacy in the content. The court held on this basis and by the language of the Evidence Code that the confidential nature of the communication was effectively waived:
However, the e-mails sent via company computer under the circumstances of this case were 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. By using the company‟s computer to communicate with her lawyer, knowing the communications violated company computer policy and could be discovered by her employer due to company monitoring of e-mail usage, Holmes 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 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.” (Evid. Code, § 952.) Consequently, the communications were not privileged.
Other significant cases this year that addressed similar issues are City of Ontario v. Quon (2010) ___ U.S. ___ [177 L.Ed.2d 216, 231] and Stengart v. Loving Care Agency, Inc. (N.J. 2010) 990 A.2d 650, 659, 663-664. Quon involved a police officer who claimed he had a privacy right in personal messages sent on department issued pagers. The Supreme Court said no to that. The Holmes case distinguished Quon as inapplicable because it involved public sector employees and the Fourth Amendment. Stengart, though from New Jersey, might have supported Holmes' position. It too, was distinguished. Stengart involved email sent from company computers but using a private web-based email account. The New Jersey court held the company policy on computer use to be vague. The Stengart case suggested that a cleared policy might not breach the attorney-client privilege. No subsequent case in New Jersey has tested that suggestion.
The opinion is some 40 pages and worth reading. The Court paints Holmes as a litigant who's subjective view of the law and circumstances giving rise to her claims as subjective and unrealistic. I've had a few encounters at the reference desk in my day where I can describe individuals in similar terms. Might I suggest to anyone out there contemplating suit against an employer to not use company facilities or systems to further that suit. Then none of this would be an issue. [MG]