Legal Alert: Computer Usage Policy Trumps California Employee's Attorney-Client Privilege


What happens when an employee e-mails her attorney from her company e-mail account about suing her employer? According to a recent California Court of Appeal opinion, Holmes v. Petrovich Development Co., LLC, [1] it is likely that the e-mail will not be protected by the attorney-client privilege and will be admissible at trial. According to the opinion, when the employer has an express policy that reduces any expectation of privacy, e-mail communications between an employee and her attorney may be equivalent to "consulting her lawyer in her employer's conference room, in a loud voice, with the door open."

The plaintiff, Gina M. Holmes, worked as an executive assistant for the defendants Paul Petrovich and Petrovich Development Company, LLC. After Holmes was hired, she read and signed the company's express computer technology resource policy that governed her usage of the company computer and e-mail account. It stated that: (1) her computer and e-mail account should be used only for company business; (2) she was prohibited from sending or receiving personal e-mails; (3) she had no right to privacy with respect to any personal information or messages created on her computer or e-mail account; (4) e-mails are not private and should be regarded as a "postcard rather than as a sealed letter;" (5) the company may inspect all files or messages at any time for any reason at its discretion; and (6) the company would periodically monitor her computer and e-mail account for her compliance with its policy.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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