Monday, January 17, 2011

California Court Rules Employee's Emails to Attorney NOT Privileged If Sent from Workplace!

I routinely tell clients not to email me from their workplace and to always use private email and this recent case out of a court of appeals in California illustrates exactly why. Plaintiff Gina Holmes was working as an assistant to the CEO of Petrovich Development Co. LLC, Paul Petrovich. During the infancy (no pun intended) of her employment, Holmes became pregnant and apparently a strain in her employment relationship developed which caused her to hire a lawyer while at work. Apparently, Holmes became upset that Petrovich was forwarding her emails to others in the organization and quit, claiming, inter alia, constructive discharge, discrimination, and harassment. Most of Holmes' claims were dismissed except for the intentional infliction of emotional distress and invasion of privacy claims, which the jury found for in favor of the defendants. Holmes then appealed claiming that the trial court should not have allowed Petrovich to use the emails she sent to a lawyer seeking a referral, in which she explained her situation, but the California court of appeals disagreed:

Although a communication between persons in an attorney-client relationship "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" (§ 917, subd. (b)), this does not mean that an electronic communication is privileged (1) when the electronic means used belongs to the defendant; (2) the defendant has advised the plaintiff that communications using electronic means are not private, may be monitored, and may be used only for business purposes; and (3) the plaintiff is aware of and agrees to these conditions. A communication under these circumstances is not a “„confidential communication between client and lawyer‟” within the meaning of section 952 because it is not transmitted “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 . . . .” (Ibid.)

When Holmes e-mailed her attorney, she did not use her home computer to which some unknown persons involved in the delivery, facilitation, or storage may have access. Had she done so, that would have been a privileged communication unless Holmes allowed others to have access to her e-mails and disclosed their content. Instead, she used defendants‟ computer, after being expressly advised this was a means that was not private and was accessible by Petrovich, the very person about whom Holmes contacted her lawyer and whom Holmes sued. This is akin to consulting her attorney in one of defendants‟ conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by Petrovich would be privileged.

Thus, the lesson to be learned whether this is the law of your land or not and whether or not a particular employer uses a monitored electronic system is to simply tell your clients to avoid communicating with lawyers, or anyone else really, using workplace electronic devices because such communications may not be private or privileged.

The case is Holmes v. Petrovich Development Company LLC.

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