Court Denies Attorney Privilege for Work E-Mail

     (CN) – A woman who discussed plans to sue her employer with an attorney on a work computer is not entitled to attorney-client privilege, a California appeals court ruled.




     Gina Holmes began working for Petrovich Development in June 2004 as the executive assistant of the owner, Paul Petrovich.
     One month later, Holmes announced that she was pregnant and would work until her due date before taking six weeks of maternity leave.
     Over the next few weeks, Holmes requested that her co-workers refrain from asking her questions about her maternity leave. In August, Holmes told Petrovich in an e-mail that she might need to begin maternity leave a month earlier than she first indicated and could be out for the full four months afforded to new mothers under state law.
     According to the ruling, Petrovich responded: “I need some honesty. How pregnant were you when you interviewed with me, and what happened to six weeks?”
     Holmes replied that she revealed her pregnancy as soon as she had received the results of an amniocentesis and added, “I feel that your words have put us in a bad position where our working relationship is concerned, and I don’t know if we can get past it.”
     A later exchange of e-mails seemed to smooth things over, as Holmes ended one missive with “Norman and Oliver say meow and woof!”
     When Holmes learned that Petrovich had forwarded her e-mails to four other employees, however, she had a tearful visit with her doctor and then e-mailed an attorney from the company computer.
     On the following day, Holmes had lunch with the attorney and then e-mailed Petrovich that she was quitting.
     Holmes sued Petrovich and his company for sexual harassment, wrongful termination, retaliation, violation of the right to privacy and intentional infliction of emotional distress.
     The trial court dismissed three of the Holmes’ charges, and a trial of the two remaining charges resulted in a verdict for the defendants. Holmes appealed, claiming that the three causes of actions – for sexual harassment, retaliation and constructive discharge – should not have been dismissed. Holmes also claimed that the court violated her attorney-client privilege by considering as evidence the e-mails that she exchanged with her lawyer using a work computer.
     The Sacramento-based third district appellate affirmed the lower court’s ruling, finding insufficient evidence to support the three dismissed charges and finding that the e-mails had not been privileged.
     “During the two months Holmes worked for Petrovich, there was no severe misconduct or pervasive pattern of harassment,” Justice Arthur Scotland wrote for the court.
     “Petrovich did not reduce Holmes’ salary, benefits or work hours, and did not terminate her. He assured Holmes that she still had a job and they would work things out,” he added.
     The appeals court also ruled the lower court properly denied Holmes’ request for discovery sanctions, seeking the return of her e-mails with her lawyer.
     Noting that the form of an e-mail does not alter the privileged nature of attorney-client communication, Scotland wrote that Holmes did not take due care to ensure that her e-mails were private since she knew that she was not supposed to send personal e-mails on company computers and had been warned that the company would monitor its computers for compliance.
     “This is akin to consulting her attorney in one of the defendant’s conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by Petrovich would be privileged,” Scotland wrote.

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