Privacy Issues in the Community College Workplace

Holmes worked for Petrovich Development as the Executive Assistant to Paul Petrovich, the Company principal. One month after her hire she advised Petrovich that she was pregnant. A series of exchanges between Petrovich and Holmes took place over the next several weeks until she resigned and subsequently claimed that she had been constructively discharged. Eventually she sued the company alleging sexual harassment, retaliation, wrongful termination, violation of public policy, violation of the right to privacy and intentional infliction of emotional distress. The company obtained summary adjudication on three of Holmes' claims and obtained a jury verdict in its favor on the remaining claims which went to trial. Prior to Holmes' resignation she had exchanged emails with her attorney seeking advice on her rights, specifically related to pregnancy discrimination. She used the company computer and email system. The company later accessed and read these emails and actually used some of them as exhibits in the subsequent jury trial. Holmes attempted to prevent the introduction of the emails into evidence and sought a court order demanding the return of the emails as privileged documents. She also challenged about a limiting instruction given to the jury by the trial judge which she claimed undermined her claim of invasion of privacy. The Court of Appeal concluded that by using the company computer and email system to send and receive emails with her attorney, Holmes lost the attorney-client privilege and any reasonable expectation of privacy. The Court explained that an attorney-client communication does not lose its privileged character solely because it is electronically communicated. However, “the e-mails sent via company computer under the circumstances of [the Holmes] 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 once again points to the need for employers to have comprehensive written and promulgated policies spelling out the terms and conditions of employee use of company computers and making it clear to employees that they have no expectation of privacy in anything they send or receive on company computers. See Appendix D for a sample Electronic Communications Resources Policy. The Court of Appeal rejected all of Holmes' claims and affirmed the trial court judgment. 2. O THER T YPES OF “P RIVILEGED ” C OMMUNICATIONS S ENT T HROUGH W ORK E-M AIL Several cases in jurisdictions outside of California have examined whether other types of privileges attach to communications sent on work computers.

In re the Reserve Fund Securities and Derivative Litigation 447 A district court in New York looked at whether the marital privilege protected e-mail communications sent by an employee to his spouse through his employer’s e-mail system. The court held that the privilege did not apply and

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 142