Can your boss use your e-mails to your attorney against you? Whenever you send those e-mails from your work account, apparently. An appeals court in the Sacramento Third Appellate District has upheld a lower court's decision in a wrongful-termination case, saying that attorney-client communications can no longer be considered confidential if you have waived your rights to work e-mail privacy.
The case was brought by Gina Holmes against her employer, Petrovich Development Company. Holmes had an e-mail tiff with her boss, Paul Petrovich, over whether she had misled him about her pregnancy during her interview—Petrovich expressed frustration with having hired someone who was pregnant and needed to go on an extended leave, and Holmes was quick to remind him of her rights under California law and the employee handbook.
The two seemingly settled the issue amicably, agreeing that everything would work out fine, but Holmes felt that the exchange had affected how others treated her at work. That's when Holmes started e-mailing her attorney—while at work and from her work e-mail account. According to the court documents, Holmes' attorney immediately warned her to delete the e-mails from her work account in case Petrovich might try to claim a right to access it, and they agreed to meet in person. Immediately following their meeting, Holmes quit her job and filed a wrongful termination suit against the company.
Part of Petrovich's defense included those supposedly confidential e-mails between Holmes and her attorney; he argued that Holmes was merely annoyed after their chat, but only filed the suit at the urging of her attorney. The trial court allowed the use of the e-mails as evidence and eventually ruled in favor of Petrovich, but Holmes appealed the case, arguing that the court abused its privilege and shouldn't have allowed the e-mails to be used at trial.
The appeals court, however, was in agreement with the lower court. In its decision, the court wrote that attorney-client privilege doesn't automatically transcend all boundaries, especially when Holmes used a work computer and was aware (via the company handbook) that her electronic communications weren't private.
"[T]he e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer 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," wrote the court.
The ruling aligns with a Supreme Court decision from last year that said a police officer's text messages weren't protected from his employer. The officer in question knew that his sexually explicit messages to his wife and mistress could be audited at any time to make sure they were work-related, and the court eventually ruled that government employers indeed have the right to snoop on employee communications.
Taking these two cases together, it's yet another indication that the concept of electronic privacy in the workplace has a very limited reach, especially if you're using work equipment. Perhaps it's time to start using a secure Gmail account to communicate with your attorney and a private cell phone to send your sexy texts.
reader comments
72