Postcard or Sealed Letter?: The California Court of Appeals Addresses Whether Personal Employee E-mails Are Confidential Communications

February 16th, 2011
By: Evan Rothman, Stephens Friedland LLP
and Todd G. Friedland, Stephens Friedland LLP

As our means of communication have evolved, and we become more accustomed to sending electronic communications in both our professional and personal lives, there has been a concurrent evolution in how these communications are viewed under the law.  One such evolving area is the attorney-client privilege doctrine.  Recently the question of whether e-mails that an employee sends to a personal attorney from her employer’s computer systems are protected from disclosure under the attorney-client privilege was addressed in Holmes v. Petrovich Development Company, LLC, 191 Cal.App.4th 1047 (2011).  And it may come as no surprise to attorneys that the answer to this question is still: it depends.  The Court of Appeal for the Third District—in Holmes—however, provided some guidance on the circumstances in which e-mails may not be protected from disclosure to the jury.

Holmes involved an executive assistant, Gina Holmes, who sued her employer for alleged sexual harassment, retaliation, wrongful termination, violation of the right to privacy, and intentional infliction of emotional distress.  Holmes’ boss, Petrovich, had a company policy that limited the use of company computers to strictly business related activities.  Petrovich had all of his employees, including Holmes, read and sign an employee handbook that contained this policy.  Specifically the handbook stated that “employees using the Company’s Technology Resources to create or maintain personal information or messages have no right of privacy with respect to that information or message… [and] E-mail is not private communication, because others may be able to read or access the message.  E-mail may best be regarded as a postcard rather than as a sealed letter….”  Holmes admitted to reading and signing the employee handbook. 

Soon after he hired her, Holmes gave Petrovich notice of maternity leave.  Petrovich questioned Holmes about maternity leave through an exchange of e-mails, in which she shared some of the details of her pregnancy with him.  Petrovich subsequently forwarded these e-mail exchanges to others in the company, including the company’s human resources and legal departments.  Eventually it got back to Holmes that employees throughout the company were reading her e-mails.  She felt distressed and that the constant questioning about her pregnancy created a hostile work environment.  Eventually Holmes contacted her personal attorney via e-mail to discuss a possible case against her employer for discrimination.  This e-mail was sent using the company’s computer equipment.  Holmes’ attorney suggested that the two meet in person and that Holmes delete the e-mail from her company computer because “her employer might claim a right to access it.”

Holmes thereafter resigned and filed suit against Petrovich alleging multiple causes of action.  At trial, over several objections by Holmes, the court permitted Petrovich to disclose Holmes’ email with her attorney to the jury.  The jury returned verdicts in favor of the defendant, Petrovich, on all counts and Holmes appealed.

On appeal, Holmes claimed that the trial court abused its discretion by allowing these communications to be used at trial.  Holmes based her arguments on several sections of the Evidence Code pertaining to the attorney-client privilege.  Holmes claimed that Evidence Code section 917 subsection (b), which states that “A 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…,” prohibited her employer from accessing and using her communications with her attorney at trial

However, the Court found that Evidence Code section 917(b) “does not mean that an electronic communication is privileged (1) when the electronic means used belongs to the defendant; (2) the defendant had 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.”  The Evidence Code makes clear that in order for a communication with an attorney to obtain privileged status, the communication must be “in confidence by a means which, so far as the client is aware, discloses the information to no third person 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….”  (§ 952) (emphasis added).  Holmes argued that her personal e-mails would be private because she “utilized a private password to use the company computer and she deleted the e-mails after they were sent.”  But the Court found that “her belief was unreasonable because she was warned that the company would monitor e-mail to ensure employees were complying with the office policy not use company computers for personal matters, and she was told that she had no expectation of privacy in any message she sent via the company computer.”  In addition, and unlike Quon, Holmes lacked personal knowledge of whether the company, in fact, monitored employee e-mail.

In her appeal Holmes relied on Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008).  Quon involved a police officer who had claimed that his Fourth Amendment rights were violated when his employer, the police department, reviewed text messages that Quon had sent on his employer-issued text pager.  Quon was later overturned by the California Supreme Court.  However, the Supreme Court did not decide whether Quon had a reasonable privacy expectation in his messages finding that “[a] broad holding concerning employees’ privacy expectations vis-avis employer-provided technological equipment might have implications for future cases that cannot be predicted.”  City of Ontario¸CA v. Quon, 130 S.Ct 2619, 2630 (2010).  The difference in Holmes, as noted by the Court, was that in Quon the employee had a reasonable expectation of privacy in his messages because, “despite a departmental policy that users of pagers had no right to privacy, the operational reality was that Quon was given an expressly conflicting message to the contrary by his supervisor.”  Quon, 529 F.3d at 907 (emphasis added)  The Court in Holmes noted that even if this “operational reality” test applied to Holmes’ email it would not change the outcome in her case since “the company explicitly told employees that they did not have a right to privacy in personal e-mail sent by company computers.”

“In sum, ‘so far as [Holmes was] aware,’ within the meaning of Section 952, the company computer was not a means by which to communicate in confidence any information to her attorney.”  “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.”

Holmes suggests that whether an e-mail communication is privileged or not will most likely depend on the employee’s reasonable expectations.  The bounds of the employee’s expectations, in turn, will largely be determined by the employer’s policies regarding the use of its technology and the employee’s awareness of such policies.  Another interesting feature of Holmes is that the court did not address the question of whether the “operational reality” argument would be viable in a situation where the employee—unlike Holmes—has personal knowledge that the company does not, in fact, enforce its policies.  This is an interesting issue given the opinion in Holmes, because personal knowledge of a lack of enforcement could reasonably influence the employee’s subjective expectations of privacy.

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