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California Court of Appeal Holds that Employer Policy Handbook Trumps Attorney-Client Privilege

Privileged information. The concept is applied in a wide variety of contexts—journalism, medicine, finances, the law…. But, as we recently learned from a ruling by the California Court of Appeal, when it comes to the legal world, not everything is protected under the attorney-client privilege umbrella. 

In the case of Holmes v. Petrovich Development Company, LLC., et al. an employee used her work computer to describe to her attorney her alleged hostile work environment that arose after informing her employer that she was pregnant. She quit ultimately, claiming the work environment was such that she had no other option but to do so. During the litigation, the employer produced and referred to the employee-attorney e-mails. The employee tried to prevent the e-mails from being used at trial, claiming attorney-client privilege, but the trial court denied the motion and the employee lost the case.

The employee appealed, claiming attorney-client privilege. The Court of Appeal agreed on that point, holding that attorney-client e-mail communications don’t lose their privileged character because others in the e-mail delivery or storage system have access.

However, the Court held that the e-mails in question were not privileged because the plaintiff was aware that her employer’s policy handbook specified that e-mails sent or received via the company network were not private and would be subject to access and search by others.

“The take-away from this case and others like it is that if employees use a workplace computer to communicate with others, they shouldn’t assume those communications are private,” says Adam Dombchick, a partner in the law firm of Gordon, Edelstein, Krepack, Grant, Felton & Goldstein, LLP. “When e-mails—or text messages for that matter—are  of a personal, confidential nature, they should not be sent using an employer’s network or technology.”

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