Cyber Privacy Wars: The Employer Strikes Back

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Distinguishing Stengart v. Loving Care Agency, a California Appellate Court Holds That An Employee's E-mails With Her Personal Attorney Sent Through The Employer’s Workplace Computer Are Not Protected By The Attorney-Client Privilege

In a widely discussed decision issued last year, Stengart v. Loving Care Agency, the New Jersey Supreme Court held that an employee had a reasonable expectation of privacy in her e-mail communications exchanged with her personal attorney through her web-based, password-protected, Yahoo! e-mail account using her employer's computer.

Recently, in Holmes v. Petrovich Development Co., LLC, a California appellate court ruled that e-mails sent by an employee to her attorney from a company computer were not privileged. According to the appellate court’s opinion, plaintiff Gina Holmes started working for Petrovich Development Company in June 2004. Ms. Holmes later told her supervisor, Paul Petrovich, that she was pregnant. Ms. Holmes' subsequent communications with Mr. Petrovich regarding her pregnancy left her feeling as though her position was in jeopardy. Mr. Petrovich shared his communications with Ms. Holmes with his colleagues, and when Ms. Holmes learned this she felt as though her rights were violated.

Ms. Holmes then e-mailed her personal attorney using her employer’s email system and computer. After sending these emails, she deleted them from her work computer. She then quit her job and sued the company, alleging claims for hostile work environment harassment, constructive discharge, violation of her privacy rights, retaliation and intentional infliction of emotional distress. The trial court granted the company’s motion for summary adjudication against the claims for hostile work environment, retaliation and constructive discharge.

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