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Your Legal Corner - Client Alert Blog

Employees Beware! Don't Use Your Employer's Email or Fax For Personal Messages

Written By: Melissa C. Marsh, Esq., California Attorney, February 2011 Add to Favorites
In Holmes v. Petrovich Development Co., LLC, No. C059133 (Cal. Ct. App. Jan. 13, 2011), the California Court of Appeals held that an employee's email messages to her attorney sent using the employer's computer and through the employer's network were not protected by the attorney-client privilege (could be used against the employee at trial) because the employee had no reasonable expectation of privacy.

The plaintiff argued that her communications with her attorney should remain confidential because: (1) under California Evidence Code §917(b) a "communication . . . does not lose its privileged character for the sole reason that it is communicated by electronic means;" and (2) under California Evidence Code §952,

"confidential communication between client and lawyer" is "information transmitted between a client and his or her lawyer in the course of that relationship and in confidence 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…."
The Court of Appeals agreed that email transmissions between an attorney and client in which there is a reasonable expectation of privacy are privileged, but held that in the instant case the plaintiff did not have a reasonable expectation of privacy in light of the employer's Computer, Technology and Internet and Intranet Usage Policy set forth in the company's employee handbook. The policy stated that: (1) "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. . . ."; and (2) the company may "inspect all files and messages . . . at any time for any reason at its discretion."

According to the Court, the plaintiff's use of her employer’s computer and e-mail account to communicate with her attorney, knowing the employer's Computer, Technology and Internet and Intranet Usage Policy, waived the attorney-client privilege under Evidence Code §917(a), which states:

"the right of any person to claim a lawyer-client privilege" is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication, or has consented to disclosure made by anyone.
The Court reasoned that the plaintiff's emails were "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."

In light of the Court's holding in Holmes, California employees should NEVER use a company provided computer, fax, or email account, to send or receive private documents or messages, especially attorney-client communications.

California employers, on the other hand, should ensure that they have a clear Computer, Technology, Internet, and E-mail Use Policy acknowledged by their employees that states: (1) the company's computers, fax machines, internet and email are to be used solely for business purposes; (2) the company has the right to access and monitor all such communications; and (3) employees have no right to privacy in any communications sent, received, or stored on the company provided computers, fax machines, network, or systems.

Posted In: Employment Law News 

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Located in Los Angeles, California, the Law Office of Melissa C. Marsh handles business law and corporation law matters as a lawyer for clients throughout Los Angeles including Burbank, Sherman Oaks, Studio City, Valley Village, North Hollywood, Woodland Hills, Hollywood, West LA as well as Riverside County, San Fernando, Ventura County, and Santa Clarita. Attorney Melissa C. Marsh has considerable experience handling business matters both nationally and internationally. We routinely assist our clients with incorporation, forming a California corporation, forming a California llc, partnership, annual minutes, shareholder meetings, director meetings, getting a taxpayer ID number (EIN), buying a business, selling a business, commercial lease review, employee disputes, independent contractors, construction, and personal matters such as preparing a will, living trust, power of attorney, health care directive, and more.