Labor and Employment Practice
FEBRUARY 2011
California Court of Appeal Rules That Employers May
Access Employee E-Mail on Company Computer, Including
E-Mail to an Employee’s Personal Attorney
BEIJING
CHARLOTTE
A California Court of Appeal has recently held that e-mails a California employee sent to her
personal attorney on a company-issued computer were not “confidential” communications and
thus were not protected by the attorney-client privilege.1 Holmes v. Petrovich Dev. Co., LLC,
No. C059133, 2011 WL 117230 (Cal. App. Jan. 13, 2011).
CHICAGO
GENEVA
HONG KONG
Gina Holmes sued her employer, Petrovich Development Company, LLC (the “Company”)
and her supervisor, alleging sexual harassment, retaliation, wrongful termination, invasion
of privacy, and intentional infliction of emotional distress. Significantly, when the plaintiff
was hired, she received, read, and signed the Company’s employee handbook. The handbook
stated the Company’s policy that: (1) Company computers were to be used only for company
business, (2) employees were prohibited from using Company computers to send or receive
personal e-mail, and (3) the Company would monitor its computers for compliance with the
policy and thus might “inspect all files and messages . . . at any time.” The policy explicitly
stated that employees using company computers for personal information or messages had “no
right of privacy with respect to that information or message.” Prior to the termination of her
employment, Holmes used her company-issued computer to correspond via e-mail with her
personal attorney regarding potential litigation against the Company.
LONDON
LOS ANGELES
MOSCOW
NEW YORK
NEWARK
PARIS
SAN FRANCISCO
The trial court granted the Company’s summary judgment motion as to Holmes’ claims for
sexual harassment, retaliation, and wrongful termination, allowing her claims for invasion of
privacy and intentional infliction of emotional distress to go to trial. At trial, the court allowed
the introduction of e-mails between Holmes and her attorney, sent and received on the Company
computer, as evidence reflecting her true emotional state. The jury ruled against Holmes on the
remaining two counts of invasion of privacy and intentional infliction of emotional distress.
SHANGHAI
WASHINGTON, D.C.
www.winston.com
On appeal, Holmes argued that it was improper for the trial court to allow the Company to
introduce her e-mails to and from her attorney because the communication was confidential
and protected by attorney-client privilege. She argued that she had a reasonable expectation
of privacy in the e-mails because she was required to input a secret password and because she
deleted the e-mail correspondence from the computer before she quit. The Court of Appeal
affirmed, finding the Company’s computer use policy in the employee handbook instructive.
Holmes admitted that she had read and signed the employee handbook, which explicitly stated
the Company policy that employees had “no right of privacy with respect to . . . information
or message[s]” created or maintained using company computers, and that the Company could
“inspect all files or messages . . . at any time for any reason at its discretion.” Thus, when Holmes
used the Company’s computer to communicate with her attorney, she did not communicate “in
confidence” and therefore the communications were not protected by attorney-client privilege.
1
The e-mails were sent from the employee’s work-issued e-mail account.
2
The court distinguished Ontario v. Quon, 130 S.Ct. 2619 (2010), where an employee was found to have a privacy right in text messages
that he sent from a company-issued text pager. In Quon, the employer had a “no-privacy” policy similar to the Company’s policy in
Holmes; however, the Quon employer’s policy had been contradicted by the employee’s supervisor, who told the employee that he did
have a right to privacy in his texts. In Holmes, the Court of Appeal found, there was no such conflicting instruction, and, therefore, no
reasonable expectation of privacy.
The Holmes decision reinforces the benefit for employers to clearly and explicitly outline their privacy policy regarding electronic
correspondence and use of company equipment (e.g., computers, cellular phones) to all employees. Furthermore, the decision
emphasizes the need for employers to train their managers and supervisors properly in order to avoid providing employees with
conflicting information regarding company policies.
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