Everyone uses e-mail these days, it seems. Many, use their work e-mail addresses for personal messages. Because people tend to be less cautious or careful in their electronic communications, e-mail can be a boon for litigators who find the proverbial "smoking gun" e-mail--or, it can be a bane for litigators trying to defend an author of a particular e-mail. Also, the pervasive use of e-mail has made discovery in litigation extremely expensive because parties (litigators) must mine volumes and volumes of data for information. Think about it, often one e-mail may mean several versions for and from several different recipients. For example, when my soccer team manager sends an e-mail about an upcoming tournament, there is a real possibility that it will generate 30-100 e-mails--some on topic, others off topic.
So, what happens when a person uses their work e-mail for a communication with their attorney? Generally, one's communication with their attorney is held inviolate. The idea behind the attorney-client communication privilege was to allow a client (or potential client) to talk openly and frankly. Indeed, when a client is not completely forthcoming with the facts, it makes an attorney's job much more difficult because there is a real chance that the attorney will be "blindsided" by information that the client failed to tell the attorney.
In Holmes v. Petrovich Dev. Co., 191 Cal. App. 4th 1047 (2011), there was a collision of work e-mail and the attorney-client communication privilege. In Holmes, an employee was considering a sexual harassment lawsuit against her employer. In her infinite wisdom, she e-mailed the attorney from her work e-mail address and her work-issued computer. As more employers have done (and should do), the employer had a written policy advising, among other things, that the company's policy was to have employees use company computers for company business and that the company would monitor its computers for compliance of this policy. In addition, the company's policy advised that it could and would "inspect all files and messages," and that an employee has no right of privacy with respect to e-mails.
The employee ultimately decided to sue her employer for sexual harassment which created an issue as to whether the e-mail to her attorney from the work computer and her work e-mail address was protected from disclosure. While the court acknowledged that California Evidence Code section 917(b) provided that electronic communications were still protected from the attorney-client communication privilege, it determined that the employee did not have a reasonable expectation of privacy or that her e-mails from work would be confidential. Ultimately, the court found that the e-mail between her attorney and herself regarding her claim were not privileged: "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 [the employer] would be privileged."
Of course, this raises the question regarding whether the employee in Holmes used her personal e-mail account (e.g. gmail, yahoo, etc.) to send the message, but sent it from her company-issued computer? An earlier New Jersey case found that using one's personal e-mail on a company computer to communicate with an attorney was protected.
So, what should you do as an employee? The safest thing is to use a personal computer and e-mail address for personal communications. If that is not possible, then be sure to understand the employer's policy on this issue before using the employer's equipment and e-mail system for private and personal communications.
As an employer, make sure that there is a definite policy covering this issue, that you obtain a written acknowledgement of this policy, and keep reminding employees of this policy. An employer should make it clear that an employee should not have a reasonable expectation of privacy in his/her e-mails or files on his/her computer.
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