On January 13, 2011, the Court of Appeal of California addressed the controversial issue of whether e-mail communications between an attorney and client/employee are privileged on an employer's computer.
In Gina M. Holmes v. Petrovich Development Company, LLC, Plaintiff Gina Holmes ("Holmes") worked for a real estate developer. When she took the job, she read and signed the company's computer use/e-mail policy that clearly stated that all activity on the company computers was open to monitoring by management.
During her employment, Holmes sent e-mails regarding possible legal action against the company to her attorney from the company computer. The Court of Appeal concluded that these e-mails did not constitute "'confidential communications between client and lawyer'" within the meaning of California Evidence Code section 952. The Court based its decision on the following: (1) Holmes knew the company's computer policy required that its computers were to be used strictly for company business and not personal e-mails; (2) she was warned that the company could monitor and inspect all files and messages at any time; and (3) she was advised that use of the company computer for personal information or messages would have no associated right of privacy.
The Court further explained that while an attorney-client communication does not lose its privileged character solely for being communicated electronically or because others may have access to the content of the communication, "the e-mails sent by Holmes in these circumstances were more akin to her consulting a 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 would be overheard by her employer."
By using the company's computer to communicate with her lawyer, knowing that the communications violated her company's computer policy and could be discovered through the company's monitoring, she 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.
This case highlights the importance of employers having a computer policy that makes clear that computers are the sole property of the company and should be used strictly for company business. The policy should also state that employers have the right to monitor these computers at any time, for any reason, to provide employees with a clear understanding of their privacy rights relating to computer use.