By Brett Clark
A recent case out of the California Court of Appeals is making waves in techie circles. In Holmes v. Petrovich Development Co., — Cal.Rptr.3d –, 2011 WL 117230 (Cal. App. 3d Dist, Jan. 13, 2011) (slip opinion here), the court held that e-mails sent by an employee to her attorney regarding possible legal action against her employer were not subject to attorney-client privilege because the employee used her work computer, despite knowing of the company’s policy prohibiting the use of company e-mail for personal use.
In the deposition of Gina Holmes, the employee, counsel for her employer confronted her with her own e-mails with her attorney and attempted to question her about them. She asserted privilege and moved in limine prior to trial to have the e-mails excluded from evidence. The trial court denied the motion and the Court of Appeals affirmed:
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.
Almost every employer that actually has a policy on use of company computers and e-mail has substantively similar warnings, even if they are never enforced. Holmes argued that this was the case at Petrovich Development-no one ever asked for her password or indicated that the company would actually review her e-mail. The court concluded that this fact is immaterial:
According to Holmes, even though the company unequivocally informed her that employees who use the company’s computers to send personal e-mail have “no right of privacy” in the information sent (because the company would periodically inspect all e-mail to ensure compliance with its policy against personal use of company computers), she nonetheless had a reasonable expectation that her personal e-mail to her attorney would be private because the ” ‘operational reality’ was that there was no access or auditing of employee’s computers.”
Here, we are not concerned with a potential Fourth Amendment violation because Holmes was not a government employee. And, even assuming the “operational reality” test applies, it is of no avail to Holmes because the company explicitly told employees that they did not have a right to privacy in personal e-mail sent by company computers, which e-mail the company could inspect at any time at its discretion, and the company never conveyed a conflicting policy. Absent a company communication to employees explicitly contradicting the company’s warning to them that company computers are monitored to make sure employees are not using them to send personal e-mail, it is immaterial that the “operational reality” is the company does not actually do so. Just as it is unreasonable to say a person has a legitimate expectation that he or she can exceed with absolute impunity a posted speed limit on a lonely public roadway simply because the roadway is seldom pa-trolled, it was unreasonable for Holmes to believe that her personal e-mail sent by company computer was private simply because, to her knowledge, the company had never enforced its computer monitoring policy.
The holding itself probably does not come as a surprise to most attorneys, since a majority of jurisdictions have held generally that an employee has no reasonable expectation of privacy in using her employer’s technological resources. Nonetheless, a potential client may not even consider that an employer might be able to read e-mail sent to an attorney, even if they are aware of this general rule. The case is a great reminder that attorneys must be cognizant of this risk even if their clients aren’t.
Ms. Holmes’ attorney, Joanna Mendoza, clued in too late. In the factual background portion of the opinion, the court notes that Holmes had originally written Mendoza simply asking for a referral to an attorney specializing in pregnancy discrimination. Had Mendoza noticed that the e-mail came from Holmes’ work account, she could have responded with a phone call and advised that she should not communicate further on her work account. The issue never would have arisen. Instead she inquired for more details-and got them. Literally an hour and twelve minutes after Holmes’ original e-mail, Mendoza realized that this might be a problem. She e-mailed Holmes and told her “that she should delete their attorney-client communications from her work computer because her employer might claim a right to access it.” But it was already too late at that point. The cat was out of the bag.
The lesson attorneys should take from Holmes is that failure to immediately recognize that a potential client is corresponding through an employer’s e-mail account could result in candid communications being displayed before a jury.