Employment Law – Personal e-mail sent on company computer not privileged

A lot of people probably already know this, but just in case you don’t, the California Court of Appeal in the case of Holmes v. Petrovich Development Company held, among other things, that an e-mail sent by an employee to her attorney on a company computer was not protected from disclosure by the attorney-client privilege.

The court held this was not a “confidential communication,” which would be privileged, because the company policy was that its computers were to be used only for company business; employees were prohibited from using company computers for personal e-mail; and the company said its employees should not expect any right of privacy regarding personal e-mails sent on company computers.  In the end, the court compared the personal e-mail to talking with her lawyer in a loud voice with the door open (which is a lame analogy in my mind).

There may be a different outcome if there is no company policy on personal e-mails but if it’s a company computer that’s still taking a big chance.  As time passes and more people have smartphones this will be less of a problem in the future.

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