Employee’s Use of a Work Computer to Communicate with Attorney “Akin to Consulting her Lawyer in her Employer’s Conference Room, in a Loud Voice, with the Door Open…”

Holmes v. Petrovich Dev. Co., LLC, 119 Cal. Rptr. 3d 878 (Cal. Ct. App. 2011)

Where plaintiff used her company’s computer to communicate with her attorney despite knowledge of policies prohibiting such use and establishing that employees had no right of privacy as to such materials, the court found that the emails “did not constitute ‘confidential communication between client and lawyer’ within the meaning of Evidence Code section 952” and thus were not privileged and affirmed the holdings of the trial court.

Plaintiff worked as an executive assistant.  Upon her hire, plaintiff read and signed the company’s policies related to use of technology resources.  Those policies prohibited personal use, informed employees that they had no right of privacy with respect to any personal information created or maintained on company computers, and warned that all such information was subject to inspection and monitoring.

The time came that plaintiff felt that she was being discriminated against at work and used her company’s computer to communicate with an attorney.  Soon thereafter, the plaintiff quit her job and sued her former employer.  In the course of litigation, the emails between her and her attorney were brought up in deposition and then attached to defendants’ motion for summary judgment.  Despite plaintiff’s protests that the emails were privileged, they were not excluded from evidence at trial.  Rather, the trial court ruled that the emails “were not protected … because they were not private.”  In the end, plaintiff did not prevail on any of her claims.  On appeal, plaintiff claimed the court erred in failing to exclude the emails.

The appellate court affirmed the findings of the trial court.  Specifically, the court stated that plaintiff’s use of the company computer after being expressly advised that her messages were not private was “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 … would be privileged.”  The court went on to distinguish plaintiff’s case from those upon which she attempted to rely, including Quon v. Arch Wireless Operating Co., Inc., a recent case in which the Fourth Amendment was implicated in a police department’s search of the text messages of one of its officers.  The court also distinguished Stengart v. Loving Care Agency, Inc., a New Jersey case in which an employee communicated with her attorney using her personal, web-based email account accessed from an employer’s computer – a situation not covered by her employer’s policies.  Finally, the court rejected plaintiff’s arguments based in her belief that the emails were confidential either because of her use of a password or because the “operational reality” of the workplace was that employees’ computers were not actually audited.

The court concluded:

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 company’s computer use policy made this clear, and Holmes had no legitimate reason to believe otherwise, regardless of whether the company actually monitored employee e-mail.  Thus, when, with knowledge of her employer’s computer monitoring policy, Holmes used a company computer to e-mail her attorney about an employment action against her boss, Petrovich, Holmes in effect knowingly disclosed this information to a third party, the company and thus Petrovich, who certainly was not involved in furthering Holmes’s interests in her consultation with her attorney (§ 952) because Petrovich was the party she eventually sued.

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