Privacy Issues in the Workplace

1. “A TTORNEY -C LIENT C OMMUNICATIONS ” S ENT T HROUGH W ORK E-M AIL In a decision entitled Holmes v. Petrovich Development Company 474 , a California Court of Appeal held that e-mails sent by an employee to her attorney regarding possible legal action against her employer did not constitute confidential attorney client communications because the employee used the employer’s computer even though (1) she had notice of the employer’s policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail, (2) she had notice that the company would monitor its computers for compliance with the employer’s policy, and (3) she had been explicitly advised that employees using company computers to create or maintain personal information or messages "have no right of privacy with respect to that information or message." The employer was thus entitled to introduce the emails as exhibits in the employee's trial of her discrimination and harassment lawsuit against the employer. 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 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 rejected all of Holmes' claims and affirmed the trial court judgment. 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

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 145