Most employers have computer and email policies that prohibit employees from using company computers for personal use and that permit employers to monitor their employees’ email. Although this is the norm, many employees still use company computers for all manner of personal use, from checking Facebook to using Gmail and other personal email systems. Even if an employee is able to get away with such personal use of company computers without getting in trouble by her employer, a California state court recently held that unauthorized use of company computers to send personal emails can prevent the attorney-client privilege from protecting emails between an attorney and a client about a legal matter.
This comes from a decision issued on January 13, 2011 by the Court of Appeal of the State of California for the Third Appellate District. (You can view the decision via the link at the bottom of this post.) This case involved an employee who was suing her employer for harassment. While the case was pending, the employee communicated about the case with her attorney using her work computer. A fight ensued about whether the employee's emails were privileged attorney-client communications. The employee argued for privilege because the emails were between attorney and client regarding an ongoing legal matter. The employer countered by arguing that the emails should not be protected by the privilege because of its email policies. The court sided with the employer.
The crux of the court’s decision is that “the emails sent via company computer . . . were akin to consulting her attorney 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.” Thus the court refused to find that the emails were protected under the attorney-client privilege because the employer did not communicate in a manner that was designed to limit the communications to only attorney and client.
For those interested in the details of the California court’s decision, the court explained as follows:
we conclude that e-mails sent by Holmes to her attorney regarding possible legal action against defendants did not constitute “confidential communication between client and lawyer” . . . . This is so because Holmes used a computer of defendant company to send the e-mails even though (1) she had been told of the company’s policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail, (2) she had been warned that the company would monitor its computers for compliance with this company policy and thus might “inspect all files and messages . . . at any time,” and (3) she had been explicitly advised that employees using company computers to create or maintain personal information or messages “have no right of privacy with respect to that information or message.”
In a somewhat similar holding, another court recently held that a client’s Facebook postings about her litigation strategy caused a waiver of the attorney-client privilege, because of the public nature of her statements. Therefore, attorneys and clients alike need to be very careful about electronic communications about legal matters using email and social media.