This is the final installment in Loyola's "11 on '11" series, in which Loyola Law School professors weighed in on what they expect to be the biggest legal issues in their fields in 2011.
Evidentiary privileges protecting communications with your lawyer, spouse, doctor, clergy, psychotherapist, and others apply only if you intended those communications to be confidential. But be wary of sending any of these folks an email from your work computer or a smartphone supplied by your employer. A recent decision by the California Court of Appeals suggests that communications to and from such devices are not privileged.
In Holmes v. Petrovich Development Company, ---Cal.Rptr.3d---, 2011 WL 117230 (Cal.App.3d, 2011), an employee brought a wrongful termination action against her employer. During her deposition, plaintiff was questioned by the company about emails she sent to her lawyer using the company's computers. She objected, claiming that the emails were protected by the attorney-client privilege. The trial court overruled her objection, and the Court of Appeals agreed, holding that the employee did not intend the emails to be confidential since (1) the computer on which they were sent belonged to the company, (2) the company advised its employees that emails might be monitored, and (3) the employee knew of this policy and agreed to it. The Court of Appeals rejected as immaterial the employee's understanding that the company did not, in fact, monitor employee emails, reasoning:
Just as it is unreasonable to say a person has a legitimate expectation that he or she can exceed with absolute impunity a posted speed limit on a lonely public roadway simply because the roadway is seldom patrolled, it was unreasonable for [the employee] to believe that her personal e-mail sent by company computer was private simply because, to her knowledge, the company had never enforced its computer monitoring policy.