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California Court: Work E-Mails Aren't Protected Under Attorney-Client Privilege

by Amar Toor on January 19, 2011 at 03:50 PM

outlook emailIf you're a California resident planning on filing a lawsuit against your employer, you probably shouldn't communicate with your lawyer via your work e-mail account -- because whatever you say won't be protected under attorney-client privilege.

Yesterday, the Sacramento Third Appellate District court ruled that e-mails sent from work accounts can't be considered legally confidential, because sending an e-mail from work is apparently no different from having a conversation in your cubicle. The case in question involved a woman named Gina Holmes, who sued her employer in 2003 on the grounds that her superiors had become hostile toward her after learning that she was pregnant. During the trial, defense lawyers used an e-mail that Holmes had sent to her lawyer as evidence that she didn't suffer any emotional distress, and that her lawsuit was therefore frivolous.

Holmes immediately appealed the decision, on the grounds that it violated attorney-client privilege, but she found no sympathy with the court. In a 3-to-0 decision, the appeals court determined that the use of evidence was justified, because Holmes had "used her employer's company e-mail account after being warned that it was to be used only for company business, that e-mails were not private, and that the company would randomly and periodically monitor its technology resources to ensure compliance with the policy."

In its ruling (PDF), the court also argued that the "e-mails sent via company computer under the circumstances of this case were 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... would be overheard."

Companies obviously have a right to monitor e-mails sent across their own networks, and Holmes clearly should've thought twice about contacting her lawyer while under surveillance from her overlords. But we still don't understand why corporate oversight would trump legally mandated confidentiality.

In this case, the company had a vested interest in Holmes's e-mail thread, because she was plotting a lawsuit against it. But what if she was reaching out to her lawyer to fight unfounded accusations of drug possession, to settle a paternity suit, or to do anything else completely unrelated to the company? She, like any other citizen, would deserve complete privacy. But, according to this California court, those e-mails would be completely fair game for her bosses to read -- and that's pretty scary.

Tags: attorney, Attorney-clientPrivilege, california, court, email, employment, law, lawsuit, politics, privacy, top, WorkEmails

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