Despite recent decisions from courts of last resort on State and federal levels, some jurisdictions are not extending full protection to otherwise privileged communications made through work-issued computers and PDAs. We last wrote on this issue after the New Jersey Supreme Court held that an employee did not waive the attorney-client privilege when using a company computer to communicate with her attorney via a personal password-protected e-mail account. Stengart v. Loving Care Agency. A short time later, in Quon v. Arch Wireless, the United States Supreme Court determined that the search of an employee’s text messages on a work-issued pager was reasonable and did not violate the employee’s Fourth Amendment rights. In the wake of these holdings, courts in other jurisdictions continue to make their own path through this new area of law. In Holmes v. Petrovich Development Company, LLC, the latest in the line of cases, the California Court of Appeals held that an employee’s e-mail communications with her attorney from her work computer did not constitute “‘a confidential communication between client and lawyer’” under Section 954 of the California Evidence Code.
In Holmes, the plaintiff sued her former employer for discrimination, retaliation, wrongful termination, invasion of privacy and intentional infliction of emotional distress. The plaintiff claimed that she was humiliated and had no choice but to resign from her job as an executive assistant after her boss asked questions about her plans for maternity leave, suggested that she had been less than candid in disclosing her pregnancy and forwarded e-mails regarding her circumstances to other officials at the company. The day before she resigned, the plaintiff consulted an attorney using her work e-mail account on a company computer, even though she (1) had been told of the company’s policy that company computers were to be used only for work and that personal e-mails were prohibited; (2) had been warned that the company would monitor the use of the computers and might inspect files and messages at any time; and (3) had been advised that employees using company computers to create or maintain personal information or messages have no right of privacy with respect to such information or messages. The employer accessed plaintiff’s e-mails with counsel from the company computer system and used the e-mails in depositions and to support their motion for summary judgment. The plaintiff objected to the use of the communications in connection with the motions for summary judgment and again at trial on grounds that the communications were protected by the attorney-client privilege. The trial court ruled that plaintiff’s e-mails were not privileged because they did not meet the definitional requirements of Section 954.
Affirming the trial court’s decision, the Court of Appeals held that the plaintiff could not have reasonably expected that such communications would remain private in light of the company’s stated policies regarding computer use and emails. The court reasoned that communicating with her attorney by work e-mail, in light of the stated policies, was “akin to consulting her attorney in one of defendants’ conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by [defendant] would be privileged.” The court distinguished Quon on the grounds that Holmes did not involve any Fourth Amendment search and seizure issues and because Holmes’ employer’s explicitly stated its policies. The court found Stengart inapposite on the grounds that the plaintiff in that case used a personal e-mail account from her work computer, and the employer’s policy did not clearly cover such circumstances.
Holmes represents the evolving jurisprudence concerning personal use of company-issued electronic devices. In some jurisdictions, explicit policies coupled with fact-sensitive circumstances may lead a court to conclude that an employee cannot have a reasonable expectation of privacy when using company-issued electronic devices. Employees be warned — use your own electronic devices for personal communications.