Holmes v. Petrovich Development: Employee Emails Sent from Work Not Protected

In Holmes v. Petrovich Development Corp. (1/13/11) --- Cal.App.4th ----, 2011 WL 117230, an employee filed suit against her employer and supervisor for sexual harassment, retaliation, wrongful termination, violation of the right to privacy, and intentional infliction of emotional distress. After the court (Sacramento Superior Court, Judge Chang) granted summary adjudication on the discrimination, retaliation, and wrongful termination causes of action, a jury found for the defendants on the two remaining causes of action. The plaintiff appealed, and the Court of Appeal affirmed.

Of greatest interest here is the Court's holding that the plaintiff's emails to her attorney regarding possible legal action against the defendants did not constitute "confidential communication between client and lawyer" within the meaning of Evidence Code section 952 because the plaintiff used a computer of 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." Slip op. at 1.

The opinion is available here.