Following last year’s Supreme Court decision in Quon v. Arch Wireless, a case that Yaron Dori and I explored in an earlier E-Commerce Law Reports article, courts across the country have been struggling to balance employers’ right to monitor employees’ electronic communications against employees’ privacy rights. The latest volley in this area is an opinion released last week by a California appellate court in the case of Holmes v. Petrovich Development Company, LLC.
In Petrovich, the California Court of Appeal confronted the question of what happens when an employee uses her business email system to seek legal advice. The plaintiff in the case, Julie Holmes, claimed that her employer and coworkers reacted negatively to her announced plans to take maternity leave, and she used her work email to contact a lawyer about a lawsuit against the company. When the employer obtained those emails and introduced them as evidence against Holmes in the lawsuit, Holmes claimed that they were protected by the attorney-client privilege.
The court disagreed, finding that Holmes’ employer had made clear to her that business emails were not private and that office computers would be monitored to ensure that they were used only for business purposes. Because of this clear policy, the court concluded that Holmes’ emails were “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.”