Holmes v. Petrovich Dev. Co., LLC, 2011 WL 117230 (Cal. Ct. App. Jan. 13, 2011)

Where plaintiff used her company’s computer to communicate with her attorney despite knowledge of policies prohibiting such use and establishing that employees had no right of privacy as to such materials, the court found that the emails “did not constitute ‘confidential communication between client and lawyer’ within the meaning of Evidence Code section 952” and thus were not privileged and affirmed the holdings of the trial court.

Plaintiff worked as an executive assistant.  Upon her hire, plaintiff read and signed the company’s policies related to use of technology resources.  Those policies prohibited personal use, informed employees that they had no right of privacy with respect to any personal information created or maintained on company computers, and warned that all such information was subject to inspection and monitoring.

The time came that plaintiff felt that she was being discriminated against at work and used her company’s computer to communicate with an attorney.  Soon thereafter, the plaintiff quit her job and sued her former employer.  In the course of litigation, the emails between her and her attorney were brought up in deposition and then attached to defendants’ motion for summary judgment.  Despite plaintiff’s protests that the emails were privileged, they were not excluded from evidence at trial.  Rather, the trial court ruled that the emails “were not protected … because they were not private.”  In the end, plaintiff did not prevail on any of her claims.  On appeal, plaintiff claimed the court erred in failing to exclude the emails.

via Employee’s Use of a Work Computer to Communicate with Attorney “Akin to Consulting her Lawyer in her Employer’s Conference Room, in a Loud Voice, with the Door Open…” : Electronic Discovery Law.