Here’s a scary decision by a California Appellate Court reported on Wired.com http://www.wired.com/threatlevel/2011/01/email-attorney-client-privilege/. An employee who sues her employer for discrimination, and who communicates with her lawyer using her employer’s e-mail system, waives the attorney client privilege by using the company’s e-mail system to seek or receive legal advice from her lawyer. In other words, if you sue your employer, you may not use that employer’s e-mail server to communicate with your lawyer, or those communications are not privileged. This is an important issue not only to litigants, but to lawyers, who routinely send litigation related e-mails to clients at workplace e-mail addresses. Lawyers must now, perhaps, ask clients a series of questions regarding the process of e-mail communications so that a privileged system of communication can be established. Wired.com quotes the court as holding that “The e-mails sent 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.” The key to the decision involves the explicit warnings given to plaintiff and her fellow employees about the use of company e-mail. The court’s holding cited the following rationale for its decision to vitiate the privilege: “This is so because Holmes used a computer of defendant company to send the e-mails even though (1) she had been told of the company’s policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail, (2) she had been warned that the company would monitor its computers for compliance with this company policy and thus might “inspect all files and messages . . . at any time,” and (3) she had been explicitly advised that employees using company computers to create or maintain personal information or messages “have no right of privacy with respect to that information or message.” See the Courts Published Opinion: http://www.courtinfo.ca.gov/opinions/documents/C059133.PDF
Whether the California decision will be followed elsewhere, or copied in other state or federal courts remains to be seen. We at PitIPtechblog will continue to monitor this decision and its fallout.