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March 7, 2011

You've got mail--but no privilege

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.

Dean Victor Gold By Dean Victor J. Gold

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.

For two reasons, the scope of this ruling is broader than might first appear. First, plaintiff did not lose her privilege because she was using a computer that happened to be owned by the very company who was to become her opponent in the lawsuit. Under the court's reasoning, confidentiality would have been lost even if her employer had nothing to do with the lawsuit. Holmes relies on section 952 of the California Evidence Code, which defines "confidential communication" between client and lawyer as one that is transmitted "by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation." Thus, there is no confidential communication even if the employer that owns the computer is just a disinterested third person. Second, the circumstances faced by the employee in Holmes are commonplace. Many, if not most, employers advise employees that emails sent from employer-owned devices may be monitored. This is because employers want to discourage personal use of company property and want to ensure that they retain the ability to police for serious abuses, such as the use of company computers for illegal purposes. But as in Holmes, most employers do not regularly monitor employee email because serious abuses are uncommon and the cost of regular monitoring is high. Most employees are aware there is no regular monitoring of their work devices and, consequently, use them both for work and personal purposes. This includes sending and receiving communications that employees expect are confidential. Holmes undermines this expectation.

The reasoning of the Holmes decision is questionable, based on a misleading analogy to the motorist who exceeds the speed limit on an unpatrolled roadway. In the case of the motorist, the pertinent legal question is only whether she exceeded the speed limit--her expectations concerning the chances of being caught are no defense. But in the case of a confidential communication privilege, the expectations of the client, spouse, patient, and penitent are key. If she had a reasonable expectation of confidentiality, the privilege applies. What is reasonable becomes, as always, a matter of weighing the applicable facts and circumstances. Those should include not just the fact that an email could be monitored, but also the chances that it would be. It seems likely that most employees would be surprised to learn that they cannot send a confidential communication to their spouse, lawyer, or doctor with an employer-supplied device.

Confidential communication privileges exist to foster relationships thought vital to society. Because the pertinent circumstances of Holmes are so common in the modern workplace, that decision poses a significant challenge to the efficacy of those privileges.