No Attorney-Client Privilege for Employee's Emails to Lawyer from Company Computer

Gina Holmes worked for Petrovich Development Co. as assistant to Paul Petrovich. She signed and agreement indicating the company computer was company property and warned her email would be inspected. She was pregnant early in her employment and got into a discussion with her boss about the length of her leave and their feelings about her pregnancy. Although it appeared that they had resolved their differences, Holmes simultaneously attempted to hire a lawyer, via email at work. Apparently, Holmes became upset that Petrovich forwarded her emails to others in the organization and quit, claiming constructive discharge, discrimination, harassment, intentional infliction of emotional distress and invasion of privacy.

The trial court dismissed the harassment, discrimination and retaliation claims on summary judgment. The court of appeal affirmed - holding that the harassment evidence was limited to email correspondence that was neither severe nor pervasive. The court of appeal also affirmed dismissal of the claim that Holmes was forced to resign. The court noted that when a plaintiff cannot establish a hostile work environment, a constructive discharge claim is a higher standard and must also fail. Holmes' retaliation claim failed too, because of the lack of an adverse action.

That left claims for intentional infliction of emotional distress and invasion of privacy, which were then submitted to a jury. The jury found for the defendants. On appeal, Holmes claimed the trial court should not have allowed Petrovich to use the emails she sent to a lawyer seeking a referral, in which she explained her situation. The trial court held that Holmes waived the privilege because she used company email, and there were clear policies explaining the company's right to monitor email. There were also some issues with the employee lawyer’s attempts to recover the emails or seek a quick or appropriate protective order. The court of appeal agreed that Holmes waived the privilege, holding:

“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.)

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.”

The lesson to be learned is that counsel should immediately seek a protective order or address these issues with the court rather than relying on opposing counsel to “work it out.” Further, attorneys for employees should advise prospective clients and current employees not to use company or monitored email systems. Employers should revise their employee handbooks and ensure their email policies are clear regarding the company’s monitoring of electronic communications and that there should be no expectations of privacy.


The case is Holmes v. Petrovich Development Company LLC and the opinion is on the Court’s website here