Employer Computer Usage Policy Negates Confidentiality Privilege for E-Mail Sent Via Work Computer

Does an office worker waive her attorney-client privilege with respect to e-mail communications between herself and her attorney by transmitting them on her employer’s computer network?  On January 13, 2011, the California Court of Appeal, Third District, held that e-mail messages that a California employee sent to her personal attorney on a company-issued computer regarding possible legal action against her employer are not “confidential” communications and thus are not protected by the attorney-client privilege.

An office worker sued her former employer for hostile environment discrimination after notifying the company that she was pregnant and would be taking maternity leave.  Before quitting her job, the employee e-mailed an attorney, asking about pregnancy discrimination laws.  The worker had previously been advised, in writing, that company policy expressly prohibited the use of company computers for personal messages.  She was also warned that the company had access to all employee e-mails through its computer system, that it reserved the right to “inspect all files and messages at any time,” and that employees who use company computers for personal purposes “have no right of privacy with respect to that information and message.”

The California trial court ruled that the e-mails were not protected by the attorney-client privilege, and allowed the company to use them during the trial.  The appeals court affirmed, stating 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 of her complaints about her employer would be overheard by him.” 

The court pointed out that Holmes sent the e-mails on a company computer even though the company’s handbook stated that its computers were to be used for company business only and that employees were prohibited from using the computers to send or receive personal e-mail. The court noted that the handbook warned that the company would monitor its computers for compliance with this policy and thus might inspect all files and messages at any time.  The handbook also stated that employees using company computers to create or maintain personal information “have no right of privacy with respect to that information or message.”  The court found that by using the company’s computer to communicate with her lawyer, despite knowing that the e-mails violated her employer’s computer policy and could be discovered by the company under its policy of monitoring e-mail usage, the plaintiff did not communicate in confidence, which under Section 952 of the California Evidence Code is a predicate for the attorney-client privilege to apply.  In so ruling, the court distinguished a New Jersey decision, as involving different facts – the use of a personal, web-based e-mail account accessed from an employer’s computer where the use of such an account was not clearly covered by the company’s policy and the e-mails contained a standard warning that they were confidential attorney-client communications.

In short, the California court held that the attorney-client privilege does not apply when an individual uses an employer’s e-mail system to send e-mails to an attorney despite a clear company policy that prohibits personal use of the system, coupled with advanced warning that e-mails sent through the system were not private and could be monitored.  The plaintiff argued that she believed her personal e-mail would be private because she used a private password to access the company computer and had never been asked by the employer to reveal it.  Nevertheless, the court found that the plaintiff had no reasonable expectation of privacy in light of the contrary warnings in the company handbook.

Moral of the story for employers and employees?  Unequivocal “use only for company business” language in an employer’s computer use policy, as well as warnings about monitoring, put an employee on notice that personal e-mail communications are forbidden and not confidential. 

Richard Newman, Hinch Newman LLP

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