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California Court Holds That Emails Sent On Employer’s Computer Not Confidential

Published by on January 27, 2011

In a recent decision, the California Court of Appeal held that emails sent by an employee to her attorney on her employer’s computer regarding possible legal action against her employer were admissible as the emails did not constitute confidential attorney-client communication within the meaning of California Evidence Code section 952.  More after the break. In […]

In a recent decision, the California Court of Appeal held that emails sent by an employee to her attorney on her employer’s computer regarding possible legal action against her employer were admissible as the emails did not constitute confidential attorney-client communication within the meaning of California Evidence Code section 952.  More after the break.

In Holmes v. Petrovich Development, Inc., an employee sued her former employer and supervisor for sexual harassment, retaliation, wrongful termination, violation of the right to privacy, and intentional infliction of emotional distress.  Defendants introduced into evidence emails that plaintiff had sent to her attorney during her employment from her company computer.  Plaintiff objected to the introduction of the emails, arguing that the emails were inadmissible as confidential attorney-client communication under Evidence Code section 952.  The trial court overruled plaintiff’s objections and allowed defendants to introduce the emails into evidence.  The trial court dismissed several of plaintiff’s claims at summary judgment and a jury found in favor of defendants on the remaining causes of action.   

The California Court of Appeal affirmed the trial court’s ruling regarding the admissibility of the emails as the emails between plaintiff and her attorney were found not to constitute confidential attorney-client communication.  The Court of Appeal held that the emails were not confidential communication because plaintiff used her employer’s computer to send the emails, even though she was informed of defendant’s policy that its computers were to be used for business purposes only and employees were prohibited from using company computers to send or receive personal emails.  Plaintiff had also been notified that the employer would inspect its computers for compliance with this policy and employees using defendant’s computers to create or maintain personal information or message had no right to privacy with respect to that information or message.   Moreover, during her employment, plaintiff had signed the employer’s employee handbook which acknowledged her understanding of the company’s computer and email policies.  The Court of Appeal concluded that by using the employer’s computer to communicate with her lawyer, knowing that the communication violated the employer’s policy and could be discovered or monitored, the emails were not communicated in confidence, and therefore were not privileged communication pursuant to Evidence Code section 952. 

The Court of Appeal emphasized that under Evidence Code section 917(b), an attorney-client communication “does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication.”  However, the Court of Appeal concluded that plaintiff’s emails on her employer’s computer were similar to plaintiff “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.”    

This case demonstrates the importance of employers maintaining current employee policy manuals which contain express policies regarding company technology and electronic communication, in addition to an agreement from the employee that they agree to comply with the company’s policies.

For a copy of the full California Court of Appeal’s decision, click here.

Our prior blog posts about court decisions in Washington, D.C., Virginia, and New Jersey regarding similar issues can be found here and here.

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