e-Lessons Learned

They are always watching! Whether you’re emailing your kids, encouraging them to do their homework and chores before watching television, sending a message to this week’s fantasy football rival, rejecting his offer to trade his kicker for your star running back, or reaching out to your college roommates, seeking advice on how to pick up the girl at the local coffee shop, make no mistake, they are watching! When you agree to your company’s computer policy, the one that says you’ll use the employer issued device for work purposes only, you do more than just promise you will spend your time focused on your job. You give up your privacy. Those emails to your kid, the message in your fantasy league, and the note to your friends, are all fair game for your boss to read. When you knowingly violate the company policy, you risk much more than having your parenting skills, football knowledge, and romantic prowess exposed to the world however. Like the plaintiff in Holmes v. Petrovich Dev. Co., LLC, you waive your attorney-client privilege regarding these communications. So do yourself a favor, if you need to email your attorney, wait until you get home, or go down the street to the public library, whatever you do, do not use your company computer!

In Holmes v. Petrovich Dev. Co., LLC, Gina Holmes sued the Petrovich Development Company alleging a hostile work environment, sexual harassment, retaliation, and constructive discharge. In the course of pursuing these allegations, Holmes utilized her company computer to exchange a number of emails with her attorney. According to Holmes, the content of those emails was protected by the attorney-client privilege. Because of this, Holmes argued, among other things, that the trial court abused its discretion when it (1) denied her motion demanding the emails be returned, and (2) permitted the introduction of those emails at trial.

In making these arguments, Holmes relied almost exclusively on the Evidence Codes relating to the attorney-client privilege. Based on Evidence Code section 954, Holmes asserted that she had the privilege not to disclose communication between her and her lawyer. She pointed to section 917(b) as evidence that such communication does not lose privileged character simply because it was communicated electronically.

Holmes arguments may have persuaded the courts, save one important detail: the employee handbook. This 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, which Holmes both read and signed, establishes that the company’s resources are to be used only for company business. More than just prohibiting personal use, the handbook explicitly warns employees that they have no right of privacy with respect to any personal information or messages. Describing e-mails as a “postcard rather than as a sealed letter” the handbook authorizes the company to inspect such files, at any time, and for any reason. Further, the handbook reserves the company’s right to periodically monitory company resources to ensure compliance with the policy.

Despite the clarity of the handbook, and in clear contravention of the stated policy, Holmes used her company email to contact her attorney in order to discuss her allegations against the company.

Both the trial court and the court of appeal determined that by using the company computer Holmes’s emails were no longer private and, therefore, not protected by the attorney-client privilege.

In explaining why the Evidence Code did not protect these communications, the court of appeal emphasized the particularities of this scenario. Holmes use the company email account after being warned in the company handbook that such e-mails were not private, and after being informed that the company was authorized to monitor its resources.

The court further emphasized that, against the technology handbook, any subjective belief that her personal e-mails would remain private was unreasonable. The handbook made all of the difference. Because of it, the court characterized these emails to her attorney, sent via company computer, as more akin to “consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him.”

Based on the facts of this case, there are two crucial takeaways for every employee subject to a technology handbook. First, do not let the excitement of being hired lead to ignorance in signing your employment paperwork. Read the technology handbook carefully before you sign it! Second, use your “inside-voice.” Just like you would not enter the conference room and shout personal and private information for all the office to hear, expecting that those details would remain confidential, do not carelessly broadcast such intimate details over the company’s server. If you need to speak with your attorney, and expect it to remain confidential, do so on your own time, outside of the office.

And whatever you decide about your emails, do not, under any circumstance, trade your star running back for his kicker. Even your boss knows that’s a bad idea.

Phil Ryan is a Seattle native. After receiving a degree in Speech Communications from Whitworth University he moved to Newark, NJ where he is pursuing his juris doctorate from Seton Hall Law.

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Article posted on March 24, 2011 at 5:00 AM |              More... 
Tagged as: Accessibility, Admissibility, Computer Forensics Protocols, Discoverability, Sanctions, Work-Product Doctrine.
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