September 01, 2011

iWitness: The Challenge of Electronic Communications: Privilege, Privacy, and Other Myths

John M. Barkett

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Lawyers beware. When attorney-client communications occur by email from home or work, the attorney-client privilege can easily be lost.

Holmes v. Petrovich Dev. Co., LLC, 191 Cal. App. 4th 1047 (Cal. Ct. App. 3d Dist. Jan. 13, 2011), raised the question of whether emails sent to counsel by an employee using her employer’s computer were privileged in the following circumstances: The employee had been told that company computers were to be used only for company business; employees were prohibited from using them to send or receive personal email; the company would monitor compliance with its computer usage policy and might inspect “all files and messages . . . at any time”; and employees “have no right of privacy” for personal information or messages created or maintained using company computers. These warnings were contained in an employee handbook that the plaintiff admitted she had read and signed.

Holmes sued Petrovich for, among other claims, wrongful termination after she told her employer of her pregnancy. When she became concerned about her continued employment, she sent an email from her office to an attorney and also forwarded to the attorney emails that she had received from her supervisor. The attorney told Holmes to delete the communications from her work computer because her employer might claim a right of access to it.

Holmes later resigned claiming a hostile work environment. The suit followed. The employer found the attorney-client email exchange and, over Holmes’s objection, used it at trial.

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