Legal View: Suing your employer? Don't e-mail your attorney from work

By David C. Pilato The Daily Record Newswire As we all know, employees frequently send personal e-mail from employer e-mail accounts and other accounts accessed through their employer's Internet. This practice continues despite the prevalence of company policies that restrict computer use to business purposes. E-mail has also become the medium of choice for attorney-client communication. Because of its low cost, speed and efficiency, important facts and documents can be transmitted for free and in an instant. Despite the fact that such communications can be unsecure, attorneys and clients often communicate via e-mail, relying upon the protections afforded by the attorney-client privilege. Many "full and frank" client disclosures, necessary for effective representation, now take place electronically, Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). In Upjohn, U.S. Supreme Court Justice William H. Rehnquist explained that the purpose of the attorney-client privilege "is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice," 449 U.S. 383, 389 (1981). Although the test varies somewhat from jurisdiction to jurisdiction, the elements necessary to establish the existence of the attorney-client privilege are: (1) the person asserting the privilege must be a client or someone attempting to establish a relationship as a client; (2) the person with whom the client communicated must be an attorney and acting in the capacity as an attorney at the time of the communication; and (3) the communication must be for the purpose of securing a legal opinion, legal services, or assistance in some legal proceeding. There are a number of exceptions to the privilege in most jurisdictions. Chief among them is the third-party exception -- the attorney-client privilege is waived where a communication is made in the presence of third-parties or disclosed to third-parties. The question then arises, when an employee considering legal action against her employer disregards the company's business-only computer use policy and e-mails her attorney from her work, does this create a figurative third-party in the room, waiving the attorney-client privilege? An appellate panel in California recently answered this question in the affirmative. In Holmes v. Petrovich Development Co. LLC, 191 Cal. App. 4th 1047 (Cal. App. 3d Dist. 2011), the court concluded that e-mails sent by plaintiff employee Gina Holmes to her attorney regarding possible legal action against the defendant employer did not constitute a "confidential communication" between client and lawyer. This was so, according to the court, "because Holmes used a computer of the defendant company to send the e-mails even though (1) she had been told of the company's policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail, (2) she had been warned that the company would monitor its computers for compliance with this company policy and thus might 'inspect all files and messages ... at any time,' and (3) she had been explicitly advised that employees using company computers to create or maintain personal information or messages 'have no right of privacy with respect to that information or message.'" In the lawsuit, Holmes alleged that she was the victim of sexual harassment, retaliation, wrongful termination, violation of the right to privacy, and intentional infliction of emotional distress, arising from her boss' (the CEO's) reaction to her pregnancy. Holmes notified the CEO one month into her employment that she was pregnant and would be taking maternity leave in approximately five months. Among other things, the CEO demanded in an e-mail that Holmes be honest and tell him "[h]ow pregnant" she was when she interviewed. E-mails were sent back and forth and the dispute was apparently resolved. Thereafter, Holmes learned that the CEO had forwarded her responses onto certain individuals, including in-house counsel and human resources. Upon discovery, Holmes exchanged two e-mails with an attorney via her company e-mail account in which she explained her situation and inquired regarding her rights. The next day, after meeting with the attorney, Holmes quit her job claiming a hostile work environment and constructive discharge. Not surprisingly, Holmes subsequently brought suit against the company. The defendant employer located the e-mails Holmes sent to her attorney (Holmes had "deleted" them), and used them as part of its defense in the lawsuit. Summary judgment was granted in favor of the defendant employer with regard to some of the causes of action and the remaining claims were tried before a jury. On appeal after trial, Holmes contended that the trial court erred in granting defendants' motion for summary judgment with respect to the causes of action for discrimination, retaliation and wrongful termination, and that the jury's verdict as to the remaining causes of action must be reversed due to evidentiary and instructional errors. Holmes argued, among other things, that the trial court erred in permitting the e-mails to her attorney to be entered in evidence, contending they were protected by the attorney-client privilege. Rejecting Holmes' argument, the court analogized that the "e-mails sent via company computer under the circumstances of the 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 further opined that "[b]y using the company's computer to communicate with her lawyer, knowing the communications violated the company's computer policy and could be discovered by her employer, Holmes did not communicate 'in confidence by means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those who whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted,'" as defined in the California Evidence Code. California is not the first state to address this issue. In Stengart v. Loving Care Agency, the New Jersey Supreme Court found that the plaintiff employee did not waive the attorney-client privilege as to e-mails sent to her attorney about an anticipated lawsuit against her employer from her personal, password-protected, Web-based Yahoo account. There, the court ruled that the employee had an objectively reasonable expectation of privacy in those communications. She had plainly taken steps to protect their privacy regardless of the existence of the company's written policy on electronic communications. Significantly, the employer's e-mail policy did not address personal, Web-based e-mail accounts, and the e-mails were not readily available. Indeed, they were forensically recovered. In New York, courts have applied a fact-sensitive, two-part, objective-subjective test for confidentiality, see In re Asia Global Crossing Ltd., 322 B.R. 247 (Bankr. SDNY 2005). In Asia Global Crossing, the bankruptcy court found that the use of a company's e-mail system by an employee to send personal e-mails to the employee's attorney did not, by itself, waive any attorney-client privilege in such communications. Whether a waiver had occurred was resolved by examining the employee's subjective and objective expectations that the communication would be confidential. The court reasoned that the subjective prong is easily satisfied because it is generally accepted that attorneys can communicate with their clients via unencrypted e-mail without fear of disclosure. As to the objective component, the court considered four factors to determine whether e-mails were privileged: (1) does the corporation maintain a policy banning personal or other objectionable use; (2) does the company monitor the use of the employee's computer or e-mail; (3) do third parties have a right of access to the computer or e-mails; and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies? In analyzing the factors, the bankruptcy court concluded that although third-parties could review the e-mails, the remaining factors were not met because the "evidence [was] equivocal regarding the existence or notice of corporate policies banning certain uses or monitoring of employee e-mails." Therefore, the court declined to rule on the issue of privilege. However, even in cases where notice of "business-only computer use" policies is unequivocal, New York courts have reached different conclusions on the issue of privilege, see Curto v. Medical World Communications Inc., 388 F. Supp. 2d 101, 112 (EDNY 2005) (employee who attempted to delete privileged e-mail communications sent via AOL account and documents from work laptop prior to the return of computer to employer had not waived privilege, despite language in employer's handbook indicating monitoring of e-mail and Internet usage); Scott v. Beth Israel Medical Center Inc., 17 Misc.3d 934 (N.Y. Sup. Ct. 2007) (e-mails sent by doctor preparing legal action against hospital from hospital system were not privileged because of hospital policy prohibiting personal use of e-mail, phone and fax and policy that such communications could be viewed by employer even where doctor claimed he was unaware of policy). ---------- David C. Pilato is an associate with The Wolford Law Firm LLP, a litigation firm that handles civil and criminal matters, and practices in the areas of criminal defense, commercial, personal injury and employment litigation. Published: Thu, Mar 24, 2011