On January 13, 2011, the California Supreme Court decided Holmes v. Petrovich Development Co. In the case, plaintiff Gina Holmes sued her former employer for sexual harassment, retaliation, wrongful termination, violation of the right to privacy, and intentional infliction of emotional distress. However, before ever initiating suit, she used her company-provided computer to send emails to her attorney regarding possible legal action against that very same company employing her.
Now, 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. She had also 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.” On top of that 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.” Therefore, the Court ruled, “the 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.”
The Court decided that her actions waived the attorney-client privilege. Why is this a big deal? Because the defendants in this case, Petrovich Development Co., were allowed to access her company email, and use those emails as evidence to show “Holmes did not suffer severe emotional distress, was only frustrated and annoyed, and filed the action at the urging of her attorney.”
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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.