Lawyers who don’t want to see their client communications end up as numbered exhibits at trial should give their clients a key bit of advice early on — don’t email me from work. That’s the upshot of a recent case involving an employee who used her workplace email account to email her lawyer about a potential discrimination claim and later saw those emails come out in discovery.
As reported by the ABA Journal, when employee Gina Holmes sent what she thought were confidential messages, she actually couldn’t have had any reasonable expectation that they wouldn’t be “overheard.” In fact, she might as well have been loudly talking with her lawyer about the claim, in her employer’s own conference room, with the door open.
Why? Because her employer had a policy in its employee handbook — which Holmes had signed off on — forbidding employees from using the company’s computers to send or receive personal email. It also warned employees that the computers would be monitored for compliance and that employees who used the computers for personal communications had no right of privacy.
Because she had no reasonable expectation of privacy, Holmes’s emails to her attorney weren’t privileged, and could be used against her at trial.
The decision falls in line with the California Supreme Court’s decision in City of Ontario v Quon, in which the court held that a police officer had a reasonable expectation of privacy in the text messages sent on his city-provided pager, but the city did not violate his Fourth Amendment rights when it audited transcripts of his texts.
These decisions have obvious effects on how employees should communicate with their lawyers about work-related claims, but questions still remain. Will this affect how management-level employees communicate with counsel during a workplace investigation or the course of litigation? What about non-employment related suits — will emails sent to counsel from workplace computers become a standard request for production? And what if the email had been sent from the company’s computer, but from a personal email account such as gmail or hotmail?
For more on issues relating to workplace privacy, go to CEB’s Advising California Employers and Employees, chap 13 and Privacy Compliance and Litigation in California, chap 8.
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