Tuesday, January 18, 2011

Private Email Communication?

Playing off a theme from recent posts, we again address the issue of employee privacy in the workplace. A recent case out of Sacramento [Holmes v. Petrovich Development Company LLC (2011) --- Cal.Rptr.3d ----, 2011 WL 117230 ("Holmes")] essentially says that employee emails, even those to or from the employee's attorney, are subject to employer review and therefore not private. (A copy of the Court's decision can be viewed here. http://www.courtinfo.ca.gov/opinions/documents/C059133.PDF)

In Holmes, Plaintiff Gina Holmes was hired as an assistant to the CEO of Petrovich Development Co. LLC, Paul Petrovich in June 2004. At the time of her hiring, she was provided with an employee handbook, which Holmes admitted reading and signing. That handbook contained provisions clearly spelling out the policy concerning use of the company's technology resources, such as computers and e-mail accounts. The handbook directs employees that the company's technology resources should be used only for company business and that employees are prohibited from sending or receiving personal e-mails. Moreover, the handbook warns that “[e]mployees who use the Company's Technology Resources to create or maintain personal information or messages have no right of privacy with respect to that information or message.” The “Internet and Intranet Usage” policy in the handbook specifically states, “E-mail is not private communication, because others may be able to read or access the message. E-mail may best be regarded as a postcard rather than as a sealed letter....” The handbook spells out further that the company may “inspect all files or messages ... at any time for any reason at its discretion” and that it would periodically monitor its technology resources for compliance with the company's policy.

Holmes advised the CEO that she was pregnant in July 2004, which apparently caused a strain in her employment relationship with the CEO. The two exchanged emails about Holmes' leave and what the CEO would do during her pregnancy leave. Apparently concerned that Holmes would quit, Petrovich forwarded the emails to HR. Holmes, meanwhile consulted a lawyer while at work. Holmes became upset that Petrovich was forwarding her emails to others in the organization and quit, claiming, inter alia, constructive discharge, discrimination, and harassment. She filed suit in September 2005, discovery ensued, and the defense sought summary judgment ("MSJ") on her claims in November 2006.

As a result of the MSJ, most of Holmes' claims were dismissed except for the intentional infliction of emotional distress and invasion of privacy claims. At trial, Plaintiff lost on those claims. Holmes then appealed claiming that the trial court should not have allowed Petrovich to use the emails she sent to a lawyer. The 3rd District disagreed. Noting that the employer had a pretty clear company policy regarding use of electronic media, the Court stated:
Although a communication between persons in an attorney-client relationship "does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication" (§ 917, subd. (b)), this does not mean that an electronic communication is privileged (1) when the electronic means used belongs to the defendant; (2) the defendant has advised the plaintiff that communications using electronic means are not private, may be monitored, and may be used only for business purposes; and (3) the plaintiff is aware of and agrees to these conditions. A communication under these circumstances is not a “„confidential communication between client and lawyer‟” within the meaning of section 952 because it is not transmitted “by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation . . . .” (Ibid.)

The Court in Holmes also noted:
When Holmes e-mailed her attorney, she did not use her home computer to which some unknown persons involved in the delivery, facilitation, or storage may have access. Had she done so, that would have been a privileged communication unless Holmes allowed others to have access to her e-mails and disclosed their content. Instead, she used defendants‟ computer, after being expressly advised this was a means that was not private and was accessible by Petrovich, the very person about whom Holmes contacted her lawyer and whom Holmes sued. This is 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 by Petrovich would be privileged.

[As an aside, we note that the Court in Holmes discussed in some length the Quon case, previously addressed in our blog. (See our June 17, 2010 blog entry.)]

The lessons to be learned here are: (1) from an employee perspective, there is little "expectation of privacy" in company emails (or other electronic communication), provided there is a clearly defined employer policy on the issue in place, and an employee should simply avoid communicating with lawyers, or others, that he or she wants to keep "private" using workplace electronic devices because such communications may not be private or privileged;(2) from an employer perspective, it is important that the Company's eletronic media policy be very clearly defined and documented-if so, such a policy will likely be upheld.


  1. Work related communications can and should take place between 9-5. Personal email on breaks (and from your own phone or laptop) or after hours. Using employer equipment to conduct personal task should not result in any privacy expectations. Mitch