Gina Holmes sued her employer, Petrovich Development Company, and Paul Petrovich for sexual harassment, constructive termination, violation of the right to privacy and intentional infliction of emotional distress. She was the executive assistant to the CEO for about two months when she let him know she was pregnant. After that, according to Holmes, life at work became so miserable that she quit and filed a lawsuit. The case, Holmes v. Petrovich Development Co. (2011) (Cal. Ct. App. 3d Dist., Sacramento C059133, filed January 13, 2011) has very interesting facts and is a must-read for all HR professionals. The actual case is here.
The focal point of the case was Holmes' use of the company e-mail account to communicate with her attorney, and the court's treatment of that e-mail as unprotected by the attorney-client privilege.
Holmes had sent an e-mail to her attorney from her work computer, using her work e-mail account, and her attorney responded. These e-mails were then used by the employer in court, as evidence to defeat her claims. The e-mails were found to be not protected by the attorney-client privilege in light of the company's written policies that: (1) it's computers were to be used only for company business and employees were prohibited from using them to send or receive personal e-mail, (2) 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) employees using company computers to create or maintain personal information or messages have no right of privacy with respect to that information or message.
As the court explained, an attorney-client communication does not lose its privileged character for the sole reason that it is sent electronically. However, e-mails sent via the company computer under these circumstances 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's discussion of this issue says it all:
Although a communication between persons in an attorney-client relationship "does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication" (§ 917, subd. (b)), this does not mean that an electronic communication is privileged (1) when the electronic means used belongs to the defendant; (2) the defendant has advised the plaintiff that communications using electronic means are not private, may be monitored, and may be used only for business purposes; and (3) the plaintiff is aware of and agrees to these conditions. A communication under these circumstances is not a "`confidential communication between client and lawyer'" within the meaning of section 952 because it is not transmitted "by a 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 . . . ." (Ibid.)
When Holmes e-mailed her attorney, she did not use her home computer to which some unknown persons involved in the delivery, facilitation, or storage may have access. Had she done so, that would have been a privileged communication unless Holmes allowed others to have access to her e-mails and disclosed their content. Instead, she used defendants' computer, after being expressly advised this was a means that was not private and was accessible by Petrovich, the very person about whom Holmes contacted her lawyer and whom Holmes sued. This is 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 Petrovich would be privileged.
This ruling has great practical importance for employers and employees, and their counsel, for several reasons.
For employers, it is important to have clearly written, comprehensive e-mail and computer use policies, to which the employees agree by signing for the employee handbook.
The case is also useful for employers' counsel, since the court analyzes when summary judgment is appropriate on various claims that are typically alleged when pregnancy discrimination is claimed.
For employees' counsel, warnings should be given that the client and attorney should not attempt to send private messages over the employer's e-mail system. Employees should not expect privacy when using the employer's systems. Employers have the right and ability to enforce their policies regarding appropriate e-mail use and monitoring of communications. Here, the company was able to use otherwise privileged communications as proof at the summary judgment stage and at jury trial, to defeat plaintiff's claims for hostile work environment, constructive termination and emotional distress damages.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
