On Thursday, January 13, 2011, the California Third Appellate District here in Sacramento issued a decision effecting both employers and employees. In short, the court determined that an employee’s computer is not very confidential, especially vis-a-vis the employer. Consequently, this new decision will be a very powerful tool for employers in this age of “thought vomit” e-mails.
More specifically, the court held that communications sent by a plaintiff in a sexual harassment on her company email/computer to her attorney regarding whether to bring the lawsuit were not protected by the attorney-client privilege. The Court pointed to Evidence Code §917(b) to explain that the communications do not lose their privilege protection simply because they were communicated electronically or because the persons or entities involved with servicing the emails (i.e. server, internet provider, etc.) have access to the content of the communications.
The court ruled that the plaintiff sent emails from her work computer despite the fact that (1) company policy that computers were not to be used for personal business such as sending or receiving personal emails, (2) plaintiff was warned that the company monitored compliance with the computer policy and that the company may inspect all files and messages at any time, and (3) plaintiff was explicitly advised that if she used the computer/email to maintain personal information or messages have no right to privacy to that information or the messages. The court explained that what the plaintiff did was tantamount to consulting her lawyer in the company conference room, in a loud voice, with the door open. No reasonable person would expect that discussions held in such a manner would remain confidential.
The effect of this decision allows the employer to use the files left on the employee’s files against him or her in court. Thus, it will it provide the employer with an advantage in court. The employee, on the other hand, will need to wait until they get home to communicate with their lawyer via e-mail.