E-mails to an attorney that clearly would otherwise have been privileged were found by the California Court of Appeal not to qualify as a “confidential communication between client and lawyer” within the meaning of California Evidence Code section 952.
In Holmes v. Petrovich Development Co., LLC, an employee appealed from a trial court determination that e-mails she sent to counsel regarding possible legal action against her employer were not privileged. The employee had used a company computer 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.'”
The Court held that while an attorney-client communication does not lose its privileged character for the sole reason that it was communicated by electronic means, the circumstances of the case “were akin to consulting her attorney 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 distinguished Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 882 (9th Cir. 2008), which was reversed by the Supreme Court in City of Ontario v. Quon, 177 L.Ed.2d 216, 231 (2010), on the ground that Quon involved a search and seizure of employee messages by a public employer. It also stressed that the employee’s use of the e-mail account was clearly covered by the company’s policy, and that employees had been warned that e-mails were not private and would be subject to random monitoring. The fact that the employee erroneously believed that the use of a private password protected the confidentiality of her e-mails, or that the company did not in fact randomly monitor employee e-mails, were found to be irrelevant.