Sure, some courts will find such e-mails protected by the attorney-client privilege, but others won’t, as one pregnancy discrimination plaintiff learned to her regret yesterday.
That unfortunate plaintiff is Gina Holmes. Holmes used to be employed by Petrovich Development, “Sacramento’s Largest Retail Developer.”
In June 2004, Paul Petrovich, the president of the California company, hired Holmes as his executive assistant. A month after starting her new job, Holmes told Petrovich that she was pregnant and that her due date was December 7, 2004.
After the standard congratulations, the reality of a new hire taking maternity leave began to set in and Petrovich began to gripe about the situation.
Holmes became distraught when Petrovich made it plain that he was unhappy about having to find someone to fill in when she was having her baby. Holmes was particularly offended when Petrovich suggested that she hid her pregnancy when she interviewed for a job with the company.
As her relationship with Petrovich deteriorated, Holmes began thinking lawsuit and used the company computer to e-mail an attorney, Joanna Mendoza.
In an August 10, 2004, e-mail, Holmes told Mendoza that she was feeling like an “outcast.” Holmes explained in the e-mail that “I know that there are laws that protect pregnant women from being treated differently due to their pregnancy, and now that I am officially working in a hostile environment, I feel I need to find out what rights, if any, and what options I have. I don’t want to quit my job; but how do I make the situation better.”
Mendoza did the right thing, immediately cautioning Holmes that the company could claim a right to access her personal e-mails and instructing her to delete their attorney-client communications from her work computer.
But the damage had been done.
On August 11 — just two months after starting with Petrovich Development — Holmes quit her job. Shortly thereafter, she sued in California court for sexual harassment, hostile environment and constructive discharge.
Predictably, Holmes’ e-mails to her attorney became an issue at trial. Petrovich Development wanted the e-mails introduced to bolster its defense. Holmes claimed that the e-mails were privileged.
The trial judge sided with Petrovich Development based on a clearly communicated workplace policy prohibiting the use of company e-mail for personal matters and giving the employer the right to “inspect all files and messages … at any time.”
The e-mails were accordingly introduced as evidence and a jury returned a verdict in favor of Petrovich Development.
Thursday, the California Court of Appeal upheld that defense verdict, concluding that Holmes’ emails were not protected by the attorney-client privilege.
The court observed that “the e-mails sent [by Holmes] 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.” (Holmes v. Petrovich Development)
Of course, the California Court of Appeal is not the first court to weigh in on this issue, nor will it be the last.
Just last October, the New Jersey Supreme Court decided that an employer couldn’t read an employee’s e-mails to her lawyer.
But the point here is that employees and their lawyers can avoid the risk of disclosure altogether by taking the precaution of ensuring that the employee communicate from a home computer or personal laptop through a personal e-mail account.
What could be simpler?
– Pat Murphy