Friday, February 4, 2011

LEGAL ALERT California Court: Emails Sent To Plaintiff’s Attorney On Employer’s Computer Are Fair Game

PRESENTED BY: Executive Leadership, LLC SPECIALIZING IN: CHANGING CAREERS, Career Transformation & Executive Development

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 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.