California Court: Emails Sent
To Plaintiff’s Attorney On Employer’s
Computer Are Fair Game
Fisher & Phillips LLP
Attorneys at law
Solutions at Work®
January 31th 2011
ACalifornia appellate court recently decided that an employee’s
email messages to an attorney about suing her employer could be
used against her at trial. The messages were not protected by the
attorney-client privilege, because the employee knowingly sent the
messages from her work email account. This unusual legal result was made
possible because the employer had a written policy that clearly stated
messages sent on the employer’s electronic communications system were
not private. Holmes v. Petrovich Development Company, LLC.
If you have not recently done so, now is the time to update your
electronic communications policy to notify employees that messages sent
on your computers and electronic devices are not private.
Sender Beware . . . Except In New Jersey.
You may recall our Alert last spring of a similar case in New Jersey
with a different outcome. Stengart v. Loving Care Agency, Inc. (“Are
Employees’ Personal Emails on Work Computers Private? ‘Sometimes’
Rules N.J. Supreme Court,” Apr 6, 2010). In that case, the employee sent
emails to her attorney from an employer-provided laptop computer using
a private, password-protected Yahoo email account. Unbeknownst to the
employee, the laptop was configured to automatically save temporary
copies of all Internet pages viewed, including her web-based Yahoo
account. When the employee was terminated and returned the laptop, the
employer found the emails.
The New Jersey court decided that the employee’s emails to
her attorney were privileged, because the employer’s electronic communications
policy permitted occasional personal use of the corporate email
system, and was silent about whether the company could or would review
private, password-protected email accounts.
The Employer’s Policy Is Key
By contrast, in the recent California case, the employer’s policy was
much clearer about what conduct was prohibited. Employees were told
that company computers were to be used for company business only and
could not be used to send or receive personal email. Employees were
warned that the company would monitor its computers and could inspect
all files and messages at any time. Finally, employees were advised that
they had no right of privacy with respect to any personal information or
messages created or maintained on company computers.
“Like Consulting Her Lawyer In Her Employer’s Conference Room”
When the plaintiff employee sent emails to her attorney despite all
of these warnings and prohibitions, the court likened it 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 [the
employer].” Under these circumstances, the court found that the email
messages were not privileged. The fact that the company as a practical
matter did not enforce its computer monitoring policy or inspect
’ personal email communications did not void the policy. The
employer won the case.
Practical Steps You Can Take Now
You’ve heard it before, but the Petrovich case is a great reminder of
how important well drafted policies are to protecting employers’ rights
in the workplace, especially where electronic communications are
concerned. Carefully review your electronic communications policy to be
sure it clearly specifies what personal use is permitted (if any) and what
emails and computer use will be subject to monitoring and review.
Don’t overlook new innovations like social networking sites (Facebook,
LinkedIn, Twitter) and smart phones that may not have existed when the
policy was created.
For more information visit our website at
www.laborlawyers.com. If you would like help updating your electronic
communications policies, or creating new ones, please contact your
regular Fisher & Phillips attorney.
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This Legal Alert provides an overview of a particular new legal decision. It is not intended to be, and should not be construed as, legal advice for any
specific fact situation.